COURT OF APPEALHECTOR YAPA, J(P/CA)
CA NO. 90/97
HC COLOMBO 7710/96
27th, 28™, 29™ MARCH, 2000
25™, 30™ MAY, 2000
02nd, 21st JUNE, 2000
12™, 19™, 20™, 21st. 26™, 27™ JULY. 2000
02™, 03rd, 28™, 30™, 31st AUGUST, 2000
Penal Code. S. 357. S. 364 – Abduction – Illicit Intercourse – Rape -Testimonial trustworthiness – test oj probability and improbability -material contradictions – delay in making complaint ■ post traumaticexperience – misdirections – proof beyond reasonable doubt – specialtreatment to prosecutrix -fair trial
The Accused Appellant was indicted on two counts – S. 357 and S. 364Penal Code. High Court sitting without a jury convicted the accusedappellant on both counts, in addition the accused appellant was askedto pay Rs. One Million as a fine, out of which a sum of Rs. 900,000/-wasto be paid to the prosecutrix as compensation. On Appeal,
Trial Judge's failure to appreciate that the meeting of the AccusedAppellant by the prosecutrix was a thought out act has undoubtedlyprejudiced the case of the accused appellant from the very beginning.
The Court has misapplied the test of probability and improbabilityif this test was properly applied, there was no difficulty in coming to theconclusion that the evidence of the prosecutrix was untrustworthy andhence cannot be acted upon.
There is no other way to apply the test of probability andimprobability except by considering the yardstick of accepted andexpected behaviour of women in society. It is the application of the testof normal human conduct.
Trivial contradictions can be ignored but not contradictions which goto the very core of the Accused Appellant's case.
394■ Sri Lanka Law Reports1200013 Sri L.R.
Per Yapa. J.
“Holding the trial in camera was unnecessary for the reason that theprosecutrix had earlier given the same evidence in a crowded court housebefore the Magistrate – steps taken by the trial Judge, to give specialtreatment to the prosecutrix at the expense of the Accused Appellant whowas entitled to a fair trial cannot be approved no court should try to molly- coddle a witness as has happened in this case – the result would be verydangerous in that the Prosecutrix would have got wrong signals to lie inCourt."
It is an imperative requirement in a criminal case that theprosecution case must be convincing no matter how weak the defence is.before a court is entitled to convict an accused, what the Court has donein this case is to bolster up a weak case for the prosecution by referringto the weakness in the defence case – that cannot be permitted: theprosecution must establish its case beyond reasonable doubt.”
Absence of tell – tale marks is a circumstance that was supportive ofthe sexual act having taken place with consent.
It is a grave error for a trial judge to direct himself that he mustexamine the tenability and truthfulness of the evidence of the accused inthe light of the evidence led by the prosecution.
The trial Judge has made use of inadmissible material referred to bythe State Counsel in his written submissions on the subject of disordersknown as ‘Post traumatic experience' Counsel is not entitled to read tothe jury extracts from any scientific treaties unless such extract had beenproduced by way of evidence in the course of trial.
The trial judge has misdirected herself on the law relating to consentby holding that “the law has no place for tacit consent.
APPEAL from the Judgment of the High Court of Colombo.
Cases referred to :
Wickremasuriya v. Dedoleena – (1996) 2 SLR 9
Karunasena v. Republic of Sri Lanka – 78 NLR at 65
K v. Atukorcde – 50 NLR 256 at 257
Karunadasa v. OIC, Nittainbuwa Police – (1987) 1 SLR 159 at 160.
James Silva v. Republic of Sri Lanka – (1980) 2 SLR 167
Regina v. Pinhamy – 57 NLR 169 at 176
Kamal Addaraarachchi v. State (Hector Yapa. J.)
D. S. Wijesinghe, P.C., with Wifaya Wickremaratne P.C., Dr. JayampathyWickremaratne, Ms. Chandrika Silva, Ms. Priyadarshani Dias andMs. Chamindi, Samaranayake for Accused – Appellant.
Palitha Fernando. D.S.G. for the Attorney General.
Cur. adv. vult.
December 15, 2000.
HECTOR YAPA, J.The accused-appellant in this case was indicted in theHigh Court of Colombo under two counts. In the first counthe was indicted with the abduction of Inoka Gallage on25. 08. 1993, in order that she may be forced or seduced toillicit intercourse, an offence punishable under Section 357 ofthe Penal Code. In the second count he was indicted withhaving committed rape on Inoka Gallage, on the said date anoffence punishable under Section 364 of the Penal Code.Learned High Court Judge after trial, sitting without ajury, convicted the accused-appellant on both counts andsentenced him to a term of two years rigorous imprisonmenton the 1st count and to a term of 10 years rigorousimprisonment on the 2nd count, both sentences to runconcurrently. In addition accused-appellant was ordered topay a fine of rupees one million with a default term of 2 yearsrigorous imprisonment. It was further ordered that out of thesaid fine of rupees one million a sum of Rs. 900,000/= to bepaid to the prosecutrix Inoka Gallage as compensation. Thepresent appeal is against the said conviction and the sentence.
At the trial prosecution led the evidence of the prosecutrixInoka Gallage, Dr. Abeysinghe, Devika Subashani, IndraniThirimanna, Police Matron Karunawathie, Sub Inspector ofPolice Randeniya and Court official Kinsley Udaya. When thedefence was called, the accused-appellant gave evidence andcalled two witnesses namely Mulin Seneviratne and Miriyan deSilva to testify on his behalf. The prosecution case as stated bythe prosecutrix Inoka Gallage briefly is as follows. Accordingto her, on 25th August 1993, she was living with her aunt
Sri Lanka Law Reports
12000] 3 Sri LR.
Dammika Thirimanna at Rajagiriya. She was 16 years of agethen and was attending school. On the said date she decidedto run away from her aunt's house in order to go to hergrandmother’s house situated at 4th lane Pitakotte. Shedecided to leave her aunt’s house as there were constantquarrels between her and her aunt, since her aunt’s husbandwho was employed in the middle-east did not like Inokastaying in their house. Furthermore her aunt’s husband wasscheduled to return home shortly. When the prosecutrix lefther aunt’s house in the morning of 25. 08. 1993, she hadcarried with her a travelling bag containing some of her clothesand an exercise book which contained the names andaddresses of cricketers and film stars which included thename and address of the accused-appellant. After leaving heraunt’s house, she proceeded first to her friend DevikaSubashani’s house at Angoda and spent some time there.Around noon after lunch she left Devika’s place to visit hergrandmother who was at 4th lane, Pitakotte. When she reachedher grandmother’s place at Pitakotte. she found that hergrandmother’s house demolished and the place deserted. Onfurther inquiry from a passerby she was informed thatthe grandmother had left the house after the death of herhusband. At that stage prosecutrix had disclosed to a passerbya lady, that she was in search of employment, even though heroriginal plan when she left her aunt’s house was to go to hergrandmother for schooling. The passerby had then given heran address in the same lane i. e. 26/1, 4lh lane and told her tolook for a j ob there. Prosecutrix having gone to the said addressand finding that there was no one in that house, had madeinquiries from the lady next door, who had referred her to thefront house. When she inquired from the lady in the fronthouse, she had informed the prosecutrix that the inmates of26/1,4th lane had moved house and given her the new addresswhich was No. 66, Rampart Road, Pitakotte. It was thenthat the prosecutrix had come to know that the accused-appellant Kamal Addararachchi had been occupying the houseNo. 26/1, 4th lane. According to the prosecutrix the house
Kama! Addaraarachcht v. State (Hector Yapa. J.)
No. 66 Rampart Road was about 3/4 mile away from the houseNo. 26/1, 4lh lane and she had walked to the said house No. 66Rampart Road, knowing that she was going in search of theaccused appellant. Having gone to the accused-appellant’shouse at No. 66, Rampart Road she had inquired from the ladyin the house for a job. When the lady in that house told her thatthere were no jobs available, prosecutrix did not go away, sinceit was getting late and the lady in the house had agreed to keepher there that night. At about 9.00 or 9.30 p.m. the accused-appellant had come home and on seeing the prosecutrix,inquired from his aunt, as to who the visitor was and the auntinformed him that she had come to meet him. Thereafter theaccused-appellant had spoken to the prosecutrix and theirdiscussion lasted for about two hours. At this discussion theprosecutrix had informed the accused-appellant that she waslooking for a job. The accused-appellant had discouraged herfrom seeking employment and advised her to continue withher studies promising to help her, and had infact given herRs. 1000/= on that occasion. At the discussion the prosecutrixhad not told the accused-appellant that she had left her aunt’shouse in search of her grandmother and how she ultimatelycame to the accused-appellant’s house. According to theprosecutrix the lady in the house who had initially agreed tokeep her for the night had told the accused-appellant to dropthe prosecutrix at her house. However the prosecutrix hadrefused to go to her aunt’s house and requested the accused-appellant to drop her at her friend Devika Subashanie’s house.At that point of time the accused-appellant had askedthe prosecutrix to get into the front seat of his car. Whileproceeding the prosecutrix had observed the car going towardsNugegoda and so she told the accused-appellant that it wasnot the road to Devika’s house. At that stage the accused-appellant had told the prosecutrix that he would take her toDevika’s place on the following day, because the people at
Sri Lanka Law Reports
1200013 Sri LR.
Devika’s house might be suspicious if she was dropped at thattime of the night. Therefore accused-appellant told her that hewould take her to a friend’s house. Since accused-appellantwas not willing to take her to Devika’s house she kept silentand finally the accused-appellant stopped the car at a friend’splace. He left the car and came back after about five minutesand told her to get down from the car saying that she could stayin the friend’s house that night and on the following morninghe would drop her at her house. Accused-appellant took her toa room where there was a table, two chairs, two beds and thenleft the room saying that he would meet the friend and comeback. After about 15 minutes he came back with a bag whichwas marked P3 at the trial. At that time she was dressed in aT-shirt, skirt, under skirt, brassiere and a nicker. The nickerwas marked P5 and the under skirt was marked P4. In theroom they talked about tele dramas where the accused-appellant had acted. Thereafter accused-appellant pulled outan over-sized denim shirt from the bag and requested her towear it. Despite several requests when she refused a struggleensued as the accused-appellant had tried to pull out theT-shirt the prosecutrix was wearing. Then only she realizedthat he was trying to molest her. But since he said there wasnobody there, she did not raise cries. In the course of thestruggle at one stage she fell from the bed. Ultimately hemanaged to pull out her T-shirt and then forced her to put onthe denim shirt to cover herself. Accused-appellant who waswearing a T-shirt and shorts was then wearing a white bedsheet. Then he held on to her and removed her under skirt (P4)using his toes. As they struggled on the bed her brassiere cameout. Further he removed her nicker in the same way as heremoved the under skirt by using his toes. Thereafter theaccused-appellant had pulled her on to the bed and after somestruggle he had sexual intercourse with her against her will.After the sexual act both of them had fallen asleep and in the
Kamal Addaraarachchi u. State (Hector Yapa. J.)
morning when she got up she found the accused-appellantalready up. Sometime later he went out and had brought hertooth paste and a brush and told her to wash herself and totake a bath which she did. Later a person in a white dress hadbrought two cups of tea and the accused-appellant requestedher to have tea. Both of them had tea together and left the placein the accused-appellant’s car. On the way the accused-appellant wanted to drop her at her aunt’s house but since theprosecutrix was not willing to go there, he agreed to drop herat Devika’s house. Even at that point of time since the accused-appellant had promised to help her in her studies she stillbelieved and trusted him. Finally the accused-appellant droveher through Kirulapana Road and dropped her at Nugegodaand she was asked to go to Devika’s house and continue herstudies. He further told her to meet him later so that he couldhelp her. Thereafter she had taken a bus to Devika’s place andreached there by about 10.00 a.m. on 26. 08. 1993. Theprosecutrix did not disclose to Devika or to her sister thealleged act of rape committed on her by the accused-appellant.All that she told Devika was that since her grandmother wasnot there, she had been directed by some lady to the accused-appellant’s house, in order to look for a job. Thereafter shewent to the accused-appellant’s house and stayed there for thenight and was able to talk to the accused-appellant. Shefurther said that she did not tell Devika about the incident ofrape due to fear of embarrassment. The prosecutrix was atDevika’s house the whole day until the evening, when at about7.00 p.m. Devika’s father had come with some police officers.Thereafter she had been taken to the Welikada Police Station.That night she was at the Welikada Police Station with thepolice matron, seated on a bench and then she was producedbefore a Senior Police Officer who recorded a statement fromher. Sometime later she was examined by a doctor. Prosecutrixfurther said that she continued to remain at the Police Stationfor about 11 days.
400Sri Lanka Law Reports1200013 Sri L.R.
Dr. Nilukshi Abeysinghe in her evidence stated that sheexamined the prosecutrix on 27. 08. 1993 and observed thather vagina was an unusual one. It was so because her vaginalchannel was unusually wide and could admit two fmgers withease. On examination other labia minora and majora and thewave indentations on the walls of the orifice revealed that theprosecutrix was not a person who has had regular acts ofsexual intercourse. Further according to the doctor theprosecutrix had a “convolutecLhvmen" where the first act ofintercourse may not cause any bleeding. In fact the doctor saidthat at the time of the examination the prosecutrix was a virginand her hymen was intact, and this situation was due to theunusual nature of her hymen. Dr. Abeysinghe also said thatshe examined the accused-appellant on 06. 09. 1993 and hehad no injuries.
Devika Subashani gave evidence and admitted theposition that on 25. 08. 1993, the prosecutrix came to herhouse in the morning at about 11.00 a.m. and left her houseafter lunch stating that she was going to her grandmother'splace. She did not bring anything with her. On the followingday i.e. on 26. 08. 1993 she came at about same time as on theprevious date and told her that her grandmother was not thereand further that she went to the house of the accused-appellant and stayed there that night talking to the accused-appellant and his aunt. The accused-appellant had given herRs. 1,000/= asking her to go to school from her (Devika’s)house. Prosecutrix never told her that the accused-appellanthad committed rape on her that night or even the fact that shehad left her aunt’s house for good. Later in the evening thepolice had come and taken her away. Indrani Tirimanna themother of the prosecutrix testified to Court that the prosecutrixstayed in her sister’s house and attended school. She used to .visit the prosecutrix once a week. When she found that theprosecutrix was missing, she made a complaint at the Welikada
Kamal Addaraarachchi v. State (Hector Yapa. J.)
Police Station on 25. 08. 1993, and later on 26. 08. 1993, thepolice had informed her that the prosecutrix was found.However the police did not allow her to speak to her daughter.According to this witness she had no relation at 4th Lane,Pitakotte. However she had heard of a grandmother withwhom she had no contact. Further she stated that she had noknowledge as to why the prosecutrix ran away from her sister’splace.
Karunawathie the Police Matron testified that on theevening of26.08. 1993 she went with the police to Walpola andbrought the prosecutrix to the Welikada Police Station.Prosecutrix was in her custody on the night of26. 08. 1993, tillthe following morning. On that night prosecutrix did not talkwith her. However on the following night i.e. on 27. 08. 1993prosecutrix started ciying and when she questioned her, shetold the witness how she went in search of her grandmotherand then how she was directed to the house of the accused-appellant in order to find a job. The accused-appellant hadthen taken her in his car saying that he would drop her at herhouse and had taken her somewhere else and had committedrape on her. When the witness had informed the O.I.C. aboutthis incident a statement was recorded from the prosecutrix.S.I. Randeniya of the Welikada Police gave evidence in relationto the conduct of the investigations in respect of this case andthe recording of the statements of various witnesses and thefact of the accused-appellant surrendering to the police on06. 09. 1993. He admitted that the prosecutrix was kept at theWelikada Police Station for 11 days after she was brought tothe Police Station on 26. 08. 1993. Finally the Court officialKinsley Udaya gave evidence referring to the contradictionsmarked V2 and V3, and the medical report of the accused-appellant marked V5. Thereafter the prosecution case wasclosed leading in evidence PI to P8.
Sri Lanka Law Reports
120001 3 Sri L.R.
When the defence was called the accused-appellant gaveevidence to the following effect. The prosecutrix had come tohis house in search of a job. He had advised her to study andgave her Rs. 1,000/= on that occasion. When he wanted todrop her at her aunt’s house on the night of 25. 08. 1993 shehad refused and wanted her to be dropped at her friendDevika’s house. When he had taken her close to her friend’shouse, she had refused to get down giving him the impressionthat she wanted to stay with him for the night. Hence he tookher to a room in a guest house and spent the night therewith her. On that night both of them willingly had sexualintercourse. He had sexual intercourse with her twice and onboth occasions he wore a contraceptive. Next morning both ofthem after a bath had a cup of tea and left the guest house andthe prosecutrix was dropped at the Nugegoda Junction. Hedenied the two charges against him in the indictment.Accused-appellant also called two other witnesses to giveevidence on his behalf, i.e. Mulin Seneviratne and Miriande Silva. Mulin Seneviratne said that one day the prosecutrixcame to her gate and asked for the accused-appellant’saddress and so she gave her the Rampart Road address of theaccused-appellant. Mirian de Silva stated that on 25'h Augustat about 3.30-4.00 p.m. the prosecutrix came to her gatelooking for the accused-appellant’s house and she told herthat the accused-appellant was not living there and wantedher to ask the front house for his address. Thereafter thedefence case was closed leading in evidence VI to V5.
At the hearing of this appeal learned Counsel for theaccused-appellant submitted that the central issue in thiscase revolves on the question of the credibility of the prosecutrixInoka Gallage. Counsel contended that whatever test oneapplies to assess her evidence, it would appear that herevidence is untrustworthy and unreliable. Therefore hesubmitted that it is unsafe to act on her evidence, and that a
Kamal Addaraarachchi v. State (Hector Yapa, J.)
conviction based on her testimony cannot be allowed to stand.Initially it would be necessary to consider whether the story ofthe prosecutrix is true when she says, that she ran awayfrom her aunt’s house to her grandmother to continue herschooling. On the other hand can it be said that the prosecutrixleft her aunt’s house for the sole purpose of meeting theaccused-appellant as suggested by the defence. In thisconnection the evidence of the prosecutrix that she carried thenote book which contained the name and the address of theaccused-appellant cannot be ignored. Besides she thought itfit to carry this note book but not her school books. This notebook was marked by the defence as VI. It is also significantthat this note book though marked by the prosecution atthe non-summary inquiry had been deleted from the list ofproductions attached to the indictment. The defence had to goout of its way to have this note book marked and produced atthe High Court trial. This note book contained the name andaddress of the accused-appellant admittedly written in herown hand writing. However she tried to make out that the notebook had no relevance to her on that occasion, since hermeeting the accused-appellant was a chance meeting. On thispoint the evidence of the defence witnesses Mulin Seneviratneand Mirian de Silva appears very significant. Mirian de Silvatestified that on 25th August when the prosecutrix came to herlooking for the accused-appellant’s house, she told her that hewas not living there and to inquire from the front house. Theevidence of Mulin Seneviratne the lady in the front house wasthat when the prosecutrix came to her asking for the accused-appellant’s address she had given her the Rampart Roadaddress. Therefore the evidence of these two witnesses isindicative of the fact that the prosecutrix having failed to locatethe accused-appellant at 26/1, 4th Lane, had sought help fromMirian de Silva and Mulin Seneviratne to get at his newaddress. Even though the evidence of these two witnessesappeared to be very favourable to the defence, the learned trial
Sri Lanka Law Reports
/2000J 3 Sri L.R.
Judge has taken a contrary view, when she stated in herjudgment as follows: “the defence called two witnesses MurielSilva and Mulin Seneviratne who corroborated the prosecutrixin her evidence as to the events that preceded her meeting withthe accused”. (Vide Page 608 of the Judgment). This in our viewis a serious misdirection on the part of the learned trial Judge.She has failed to appreciate the defence evidence which wasmost favourable to the accused-appellant. The evidence ofthese two witnesses ruled out the prosecution story that themeeting of the accused-appellant by the prosecutrix on thatday in question was a chance meeting and supported thedefence suggestion that the meeting of the accused-appellantby the prosecutrix on 25.08. 1993, was a thought out act. TrialJudge's failure to appreciate this position has undoubtedlyprejudiced the case of the accused-appellant from the verybeginning.
It was submitted by learned Counsel for the accused-appellant that the story of the prosecutrix that she went insearch of “a grandmother” to stay with her for the purpose ofschooling was highly improbable. According to IndraniTirimanna the mother of the prosecutrix, she had no relationliving at 4th lane, Pitakotte. She had heard of a grandmotherwith whom they had no such contact. According to theprosecutrix herself, the woman described by her asgrandmother is not her mother’s mother but a distant relative.Therefore there was the possibility that the prosecutrix wasreally unaware whether such a grandmother was among theliving when she allegedly set off in search of her house on 25.
1993. Further it would appear from the evidence of theprosecutrix that her grandmother was living in a shanty typeof house and the question would arise as to whether theprosecutrix could have attended school from there and thatwhether the grandmother could have spent for her schoolingand other needs, a consideration which cannot be overlooked.
Kamal Addaraarachchi u. State (Hector Yapa, J.)
Also one cannot be blind to the fact that here was a girl who hadan aunt to look after her, she had her mother living closeby visiting her eveiy week, leaving the aunt and the motherfor good, in search of a distantly connected grandmother,about whom she had not heard for more than three years.Surprisingly the prosecutrix who was keen on continuing herstudies from her grandmother’s place never carried a singlebook except the note book containing the address of theaccused-appellant. This conduct is highly improbable. There-fore her alleged trip to “a grandmother’ appears to be a pretextto meet the accused-appellant.
Another matter referred to by Counsel for the accused-appellant was the subsequent conduct of the prosecutrix afterfinding that her grandmother was not there at 4,h lane,Pitakotte. The prosecutrix who wanted to attend school fromher grandmother’s place suddenly changed her plans andwanted to find a job. It is in search of a job that she proceededon foot from the 4th Lane, a distance of 3/4 mile to the newresidence of the accused-appellant. Since the accused-appellant was not in the house, she met his aunt who told herthat there were no jobs available. If her idea was to find a job,there is no reason why she should remain there for four longhours waiting for the accused-appellant even after she becameaware from the aunt that there were no jobs available. Thus towait for the accused-appellant who was a total stranger to herto get a job was a remote possibility. This conduct of theprosecutrix showed that even going in search of a job appearsto be a cover up. When the accused-appellant came home fourhours later, the next thing that happened was a two hourdiscussion between the prosecutrix and the accused-appellant. At the discussion the prosecutrix did not sayanything about her leaving the aunt’s house in search of hergrandmother. Any person with common sense in such asituation would have disclosed this fact, for such a disclosure
Sri Lanka Law Reports
1200013 Sri LR.
would have got more sympathy towards the prosecutrix. Thisconduct would support the defence suggestion that her trip to4th lane, Pitakotte was to meet the accused-appellant. After thediscussion that night at about 11.00 or 11.30 p.m. theprosecutrix had set off with the accused-appellant in his carto go to Devika’s house. It was a late night ride with a manwhom she had come to know just two hours earlier, a totalstranger but a film star she adored. There was nothing toprevent the prosecutrix staying over the night in the accused-appellant’s house and proceeding to Devika’s house on thefollowing morning. In fact accused-appellant's aunt hadearlier agreed to keep the prosecutrix in the house for thenight. Anyway prosecutrix left with the accused-appellant andas she said on the way the plans were changed, accused-appellant deciding to take her to a friend's place and sheagreeing to go with him without much ado. The fact that theprosecutrix went into the room of this unknown house with theaccused-appellant in the dead of the night, without makingany fuss, makes her version that she was an unwilling partyto sexual intercourse highly improbable, having regard to thenormal conduct and behaviour patterns of women and girls inSri Lankan society. It is common sense that both of them wentinto this room for sensual enjoyment. Therefore when theprosecutrix says that accused-appellant had sexualintercourse with her against her will or without her consent,her story becomes unacceptable.
It was also submitted by Counsel that in the room after twoacts of rape, both the prosecutrix and the accused-appellantslept and then they brushed their teeth, had a bath, enjoyeda cup of tea served by a waiter and left the place in the car.Finally the prosecutrix was dropped at the NugegodaJunction. Prosecutrix then proceeded to Devika’s house andtold her that she spent the night at the accused-appellant’shouse chatting with him and his aunt. Not one word about
Kamal Addaraarachchi v. Stale (Hector Yapa. J.)
rape being committed on her by the accused-appellant. Shespent the whole day at Devika’s place but never cared to tellDevika, Devika’s sister or Devika’s father about her plight.Surely this is not the behaviour of a rape victim. Perhaps, ifDevika’s father did not contact the police due to someunknown reason, this case may not have seen the light of day.It would appear that the conduct of the prosecutrix in relationto the events that took place after meeting the accused-appellant on the night of25. 08. 1993, till she was removed bythe Welikada Police from Devika’s house on the following day,i.e. 26. 08. 1993 around 7.30 p.m., cannot be the conductexpected of a person who had been subjected to an act ofabduction and rape. On the contrary it would appear to us asthe learned Counsel for the accused-appellant commented,that their conduct was more analogous to the conduct of a“honeymoon couple”. Only sensible conclusion that could bearrived at is that, the prosecutrix had lied to Court when shesaid she was abducted and raped.
In judging the. testimonial trustworthiness of theprosecutrix one of the possible tests that could safely beapplied would be the test of probability and improbability. Thedefence made the submission that the evidence of theprosecutrix was untrustworthy in that her conduct was mostimprobably. It was contended by counsel that the learned trialJudge has not correctly applied this test of probability andimprobability in order to determine the creditworthiness of theprosecutrix as evident from the following passage of herjudgment which reads as follows: “In this case, Inoka’sevidence when taken in conjunction with the evidence of thetwo defence witnesses and other witnesses of the prosecution,reveal that the “probabilities factor” echo’s in favour of theversion narrated by the witness.” (Vide page 619 of theJudgement). Learned Counsel submitted that this finding ofthe learned trial judge that the “probabilities factor” echoes in
Sri Lanka Law Reports
12000] 3 Sri LR.
favour of the version of the prosecutrix is totally erroneous,unwarranted and do not find support from the evidence in thecase. This finding of the learned trial Judge in our view isunrealistic and does not reflect the correct conclusion onecould come to on the evidence of the prosecutrix. It is veryunfortunate that the Court has misapplied the test ofprobability and improbability. If this test was properly appliedthere was no difficulty in coming to the conclusion that theevidence of the prosecutrix was untrustworthy and hencecannot be acted upon. It would appear that she had lied toCourt on several material issues. As learned Counselsubmitted the approach of the learned trial Judge in applyingthe test of probability and improbability is flawed by reason ofapplying a subjective test. This is clear from the followingpassage cited by Counsel from the judgment of the trial Judgewhich reads as follows.” The defence suggested that herversion of the incident was improbable, when considered inthe light of the probability improbability test, as it went againstthe behaviour of any reasonable person. He clearly based thison the stereotype accepted and expected behaviour of womenin society." (Vide Page 621 of the Judgment.) Counselsubmitted that in applying the test of probability andimprobability the test to be applied is an objective test and nota subjective test which has been erroneously applied by thelearned trial Judge. In support of this contention Counsel citedthe observation of Justice Mackenna referred to by E.R.S.R.Coomaraswamy, the Law of Evidence Vol. II (Book 2) Page 1052which reads as follows: “When I have done my best to separatethe truth from the false by these more or less objective tests,I say which story seems to me the more probable, the plaintiff sor the defendant’s, and if I cannot say which, I decide the case,as the law requires me to do in the defendant’s favour”.
In our view there is no other way to apply the test ofprobability and improbability except by considering the
Kamal Addaraarachchi u. State (Hector Yapa, J.)
yardstick of accepted and expected behaviour of women insociety. In other words it is the application of the test of normalhuman conduct. As Jayasuriya J. observed in the case ofWickramasuriya v. Dedoleena & others111" A judge in applyingthe test of probability and improbability relies heavily in hisknowledge of men and matters and the patterns of conductobserved by human beings both ingenious as well as those whoare less talented and fortunate.” In this case it would appearthat both the trial Judge and the learned Senior State Counselwho prosecuted (as observed from his written submissions)seem to have been imbibed with an erroneous notion thatwhen applying the test of probability and improbability it is thesubjective test and not the objective test that has to be resortedto, so much so that the learned Senior State Counsel seems tohave pleaded before the trial Judge not to reject the evidenceof the prosecutrix by applying the objective test when he statedin his written submissions as follows:” Hence it is submittedthat through an objective assessment of the prosecutrix’sconduct her evidence should not be rejected.” What is inherentin this submission of learned Senior State Counsel is that if anobjective test was applied in assessing the evidence of theprosecutrix, then her evidence had to be rejected. This is wherethe confusion arose.
A submission was made by Counsel for the accused-appellant that the two contradictions (V2 & V3) marked inrelation to the use of the contraceptives and the two acts ofsexual intercourse committed by the accused-appellant, hadthe effect of showing or highlighting the probability of consenton the part of the prosecutrix. In cross examination when theprosecutrix was asked whether any contraceptives were usedby the accused-appellant, her reply was that she could notremember. However it was proved at the trial that at the nonsummary inquiry she had stated to Court that “He took fromthe bag a yellow elastic thing. He took it out of the packet. I saw
Sri Lanka Law Reports
1200013 Sri UR.
it was as a circular thing. He put it to his male organ” Thiscontradiction was marked as V2. The other contradictionarose in view of her evidence in the High Court that she wassubjected to one act of rape, where as in the Magistrate's Courtshe has stated that there was a second act of sexualintercourse using a contraceptive. This contradiction wasmarked V3. It is strange that prosecutrix having told theMagistrate that the accused-appellant used contraceptives atthe time of rape, to have forgotten this vital fact when she gaveevidence before the High Court, for the reason that accordingto her this was the first time she had ever slept with a man.Further according to her evidence, it would appear that shehad seen a contraceptive for the first time only on that night.It is to be noted that the prosecutrix would have seen acontraceptive for the second time, when the accused-appellant used a contraceptive for the second act of sexualintercourse. It is also very surprising that after having toldthe Magistrate about the second act of sexual intercourseusing a contraceptive the prosecution has forgotten it and saidone act of rape at the trial before the High Court. To us it wouldappear that the reason for her forgetfulness lies elsewhere. AsCounsel submitted if the prosecutrix admitted the use ofcontraceptives and the second act of sexual intercourse, theprobability of consent would have been far greater. Besides the• second act of sexual intercourse took place after they had sleptfor some time, a type of conduct which is very suggestive ofsexual intercourse having taken place with consent. Surelyany woman after the first act of rape would not think ofsleeping with the rapist again unless at gun point. Further ifthe accused-appellant attempted to ravish her for the secondtime, prosecutrix would have yelled and cried for help. Humanconduct is such, that, when there is danger it is natural for ahuman being to ciy for help whether there were people aroundor not. In this case prosecutrix tried to tell the world that shedid not raise cries because the accused-appellant had told her
Kamal Addaraarachchl u. State (Hector Yapa, J.)
earlier that there were no one around. This evidence and thereasoning is unacceptable. Common sense will tell us that theprosecutrix did not shout or ciy as she was a willing party tothe sexual conduct. Even though these two contradictionswere very suggestive of the sexual acts having taken place withthe consent of the prosecutrix, it was most unfortunate thatthe trial Judge has glossed over the two contradictions whenshe stated in her judgment as follows: “The Learned Counselfor the defence also submitted that the prosecutrix in hertestimony, under cross examination denied that the accusedhad worn a contraceptive during intercourse and marked acontradiction in her testimony given at the non summary trialon this point. In considering this contradiction, I hold that itis not a material contradiction.” . . . “Be that as it mayaccording to the facts of this case and taking intoconsideration the several traumatic events that had occurredfrom 25th to 26th of August 1993. in the life of the prosecutrixI hold that she may have with time reasonably forgotten theexact number of the several acts of sexual intercourse.” (Videpages 609 and 610 of the judgment). With very great respectto the judge, we cannot agree with her. Trivial contradictionscan be ignored, but not contradictions which go to the verycore of the accused-appellant’s case. (Vide Wickremasuriya v.Dedoleena and others). In this case, the two contradictionswere material contradictions which go to the very root of theaccused-appellant's case of consent and therefore very favour-able to the accused-appellant. However the two contradictionswere grievously overlooked by the trial Judge. Further on areading of the judgment it would appear that the learned trialJudge has been misled and dazzled by some wrong notion ofgender inequality.-
Another important submission that was advanced bylearned Counsel for the accused-appellant which was verysupportive of the theory of consent was the absence of injuries
Sri Lanka Law Reports
1200013 Sri UR.
on the prosecutrix. This submission has to be considered inthe light of the evidence that was elicited from the prosecutrix.It was her evidence that she struggled with the accused-appellant when she realized that he was trying to molest herand at one stage she even fell from the bed. To escape from hisgrip she even had scratched the accused-appellant. She hadput up a fierce resistance before he managed to enter her.Hence one would expect some injury, even a scratch mark, onsome part of her body or even on the body of the accused-appellant. Absence of such tell-tale marks is a circumstancethat was strongly supportive of the sexual act having takenplace with her consent. (Vide the case of Kaninasena v.Republic of Sri Lankat2> at 65). Therefore we are of the view thatthere is much merit and substance in this submission ofCounsel and veiy clearly supportive of the defence case thatthe sexual act was committed with the consent of theprosecutrix. If that be the case the resulting position would bethat the prosecutrix has lied to court when she painted apicture of grim and fierce resistance inside the room prior tothe act of rape.
Another matter that was raised by the learned Counselwas the absence of corroboration to show that the sexualact was committed on the prosecutrix against her will orwithout her consent. The law regarding to the requirement ofcorroboration in rape cases is well settled. As observed byGratiaen J. in the case of King v. Attukorale‘3> at 257. “Thecorroboration which should be looked for in cases of this kindis some independent testimony which affects the accused byconnecting or tending to connect him with the crime, and it issettled law that although the particulars of a complaint madeby a prosecutrix shortly after the alleged offence may be givenagainst the person ‘as evidence of the consistency of herconduct with her evidence given at the trial,’ such complaint‘cannot be regarded as corroboration in the proper sense in
Kama! Addaraarachchi v. State (Hector Yaga, J.)
which that word is understood in cases of rape and it ismisdirection to refer to it as such . . . such evidence is notcorroboration because it lacks the essential quality of comingfrom an independent quarter.” These are much hallowedprinciples enunciated by erudite Judges of our SuperiorCourts which cannot be and should not be just ignored. In thiscase where the sexual act has been admitted and the matterin issue is whether it was done with consent or without consentone possible area which could have provided independentcorroboration was the medical evidence. However according tomedical evidence there being no injuries either on theprosecutrix or on the accused-appellant there appears to beno independent corroboration relating the act of sexualintercourse having been committed on the prosecutrix againsther will or without her consent. This vital aspect has not beenconsidered by the trial Judge.
Another matter of significance referred to by learnedCounsel was the prosecutrix's delay in making a promptcomplaint about the incident of rape. She kept mum when thewaiter brought tea to the room in the morning. She spent thewhole day at Devika’s house on 26. 08. 1993, without tellinganybody of the incident of rape. Even when she was taken tothe Welikada Police Station at about 7.30 p.m. on the 26thnight, in her short statement recorded by the police she did notrefer to the act of rape. It was on the following day i.e. on27. 08. 1993, in her second statement that the prosecutrix hadthought it fit to mention about the act of rape. Under normalcircumstances, one would have expected the prosecutrix tohave come out with the incident of rape to the police at the firstopportunity and that is what the test of spontaneity andcontemporaneity requires. Surprisingly it did not happen inthat way. It happened only on the 27th night as stated bythe police matron Karunawathie in her evidence, a fact notcorroborated by the prosecutrix herself. According to the
Sri Lanka Law Reports
1200013 Sri LR.
prosecutrix on the 26th night when she was seated on a benchat the police station she said she spoke to the police matronKarunawathie. No body knows what she spoke to Karunawathie.All that the learned Senior State Counsel elicited amidstobjections from the defence was the affirmative answer “yes"to the leading question put to the prosecutrix whether whatshe told the matron was true. Thus there is no evidence fromthe prosecutrix that she told Karunawathie about an incidentof rape committed on her by the accused-appellant. On theother hand Karunawathie’s evidence was that on the 27th nightat the police station prosecutrix told her that she was raped bythe accused-appellant. This evidence of the matron is heresay,since the prosecutrix did not say what she told the policematron. Hence this item of evidence elicited from the policematron is inadmissible evidence. The next thing the policematron stated in her evidence was that she brought it to thenotice of the O.I.C. Wekadapola next morning and that wouldbe 28th morning. On this matter Police matron Karunawathiewas very clear that on the 26th night prosecutrix did not talkto her. It was on the 27th night that the prosecutrix cried andcame out with the story of rape by the accused-appellant.However as learned Counsel pointed out that thesecontradictory positions have not been resolved or consideredby the trial Judge. Learned trial Judge has simply taken thingsfor granted, when she considered the case on the basis that onthe 26th night the prosecutrix was seated on a bench at thepolice station with the police matron, the prosecutrix startedcrying and stated that the accused-appellant had raped her.that on the following morning the police matron brought it tothe notice of the O.I.C. with all these inconsistences, we are ata loss to understand how the trial Judge could have stated inher judgments follows: “The evidence to the sequel of eventsthat had occurred after she had been dropped off by theaccused was corroborated in great detail by both Devika andthe matron.” (Vide page 607 of the judgment). Far from
Kamal Addaraarachchi v. State (Hector Yapa, J.)
corroborating, the prosecutrix stands contradicted by thematron. In our view it is a serious misdirection by the trialJudge having regard to the evidence in the case.
Learned Counsel complained that the trial Judge hasmeted out special treatment to the prosecutrix at the trial. Itwas to the following effect:- (A) That the trial was held incamera, (B) That when the prosecutrix did not come out withthe story of rape an adjournment was given for the followingday in spite of the objections raised by the defence Counsel,followed by a change of prosecuting Counsel on the next dateof trial, (C) That the court facilitated the prosecutrix to adduceevidence from the platform occupied by the Registrar withoutusing the witness box, (D) That the prosecutrix was informedthat if necessary she could even have her mother or a closerelation accommodated in the Court, (E) That the Court gavethe prosecutrix an assurance that she had the protection of theCourt, (F) Finally inquiring from the prosecutrix when shebecame tongue-tied whether the accused had threatened her.In view of the special treatment afforded to the prosecutrix,learned Counsel complained that the accused-appellant wasdeprived of a fair trial. In our view, holding the trial in camerawas unnecessary for the reason that the prosecutrix hadearlier given the same evidence in a crowded Court housebefore the Magistrate. Infact the learned Magistrate haddisbelieved her then. Further at the High Court trial prosecutrixwas a woman of 20 years of age. We cannot approve these stepstaken by the learned trial Judge to give special treatment to theprosecutrix at the expense of the accused-appellant who wasentitled to a fair trial. No Court should try to molly-coddle awitness as has happened in this case. The result would be verydangerous in that the prosecutrix would have got wrongsignals to lie in Court. It is very important in a criminaltrial that an accused should have a fair trial and thereforesituations should be avoided so that no complaint of
Sri Lanka Law Reports
1200013 Sri UR.
discrimination, bias or injustice could be made. It may be thatthe Court involuntarily allowed these things to happen with afeeling of sympathy to the prosecutrix. However the net resultis that the Counsel for the accused-appellant complained thathis client was denied of a fair trial.
It was also contended by the counsel for the accused-appellant that with all the proddings in the High Court theprosecutrix was evasive, there was reluctance and silence onher part to give evidence, there were times when she becametongue-tied, there were two serious contradictions in her storyand there was a very high degree of improbability in her story.All these features in her conduct collectively reflectedthe demeanour of the prosecutrix. However with all theseweaknesses in her evidence, we are unable to appreciate thereasoning of the learned trial Judge when she stated in herjudgment as follows: “The testimony of the complainant Inokawas in my findings a testimony that was truthful and honest.Her demeanour, conduct and the manner in which she gaveher testimony was straight forward and she was never evasivenor did she appear to hide anything …" (Vide page 618 of theJudgment). This is certainly not a realistic assessment of theevidence of the prosecutrix.
Another argument advanced by counsel was that therewere several factual misdirections on the part of the learnedtrial Judge which has caused prejudice to the accused-appellant’s case. For example it was submitted that the trialJudge has stated in her judgment that the prosecutrix had leftthe house with the consent of the aunt, a fact not borne out byher evidence. Trial Judge has also stated in her judgment thatthe prosecutrix had left home to seek employment when theevidence was that the prosecutrix left home for the purposeof schooling. Similarly there were several other factualinaccuracies referred to by Counsel (vide written
KamalAddaraarachchi u. State (Hector Yapa. J■)
submissions). However it is unnecessary to go into all thesedetails here. Suffice to state that these fatal misdirections havecaused serious prejudice to the accused-appellant assubmitted by Counsel.
Learned Counsel for the accused-appellant complainedthat the trial Judge has rejected the evidence of the accused-appellant for two reasons. Firstly that the defence of consenttaken by the accused-appellant was belated, in that it wastaken for the first time after the close of the prosecution case.It was said that the suggestion of consent was not put to theprosecutrix though she was cross examined at great length.Counsel submitted that even though there is no burden on theaccused-appellant to put forward his defence to the prosecutrix,it is clear from the nature of the cross examination donerelating to what took place in the room, detailed questioningwas done to show that there was consensual intercourse whendefence elicited material such as brushing her teeth, having abath, partaking of tea and leaving the room without a fuss. Thesecond ground for rejecting accused-appellant’s evidence wasthat he had denied it in his police statement that he had sexwith the prosecutrix. However accused-appellant’s evidencewas that he advisedly did not admit it at that stage. It wouldappear from her judgment that the trial Judge seems to havegone on the basis that the prosecution could profit from thisalleged weakness in the defence case. It is an imperativerequirement in a criminal case that the prosecution case mustbe convincing, no matter how weak the defence is, before aCourt is entitled to convict an accused. What the Court hasdone in this case is to bolster up a weak case for theprosecution by referring to the weaknesses in the defence case.This cannot be permitted. The prosecution must establish itscase beyond reasonable doubt. There is no escape from thisrequirement. (Vide the case of Karunadasa v. O.I.C. NittambuwaPoliceH> at 160). Besides a comparison of the defence case and
Sri Lanka Law Reports
1200013 Sri L.R.
the prosecution case is not permissible. In the case of JantesSilva v. The Republic of Sri Lanka151, the trial Judge stated that“I had considered the evidence of the accused and I hold thatit is untenable and false in the light of the evidence led bythe prosecution." The Court held that there is a seriousmisdirection in law. It is a grave error for a trial Judge to directhimself that he must examine the tenability and truthfulnessof the evidence of the accused in the light of the evidence ledby the prosecution. To examine the evidence of the accusedin the light of the prosecution witnesses is to reverse thepresumption of innocence. It is to be observed that the trialjudge in this case too has done the very same error which is notpermitted in law when she stated in her judgment as follows:“Having carefully considered his evidence, and havingevaluated it with the rest of the evidence I reject his testimonyas being unworthy of credit.” (Vide Page 620 of the judgment).This is a serious misdirection in law. Therefore by reason of thelearned trial judge misdirecting herself on the law as statedabove, she has failed to consider whether the evidence ofthe accused-appellant created a reasonable doubt in theprosecution case. Undoubtedly this erroneous approach of thetrail Judge has seriously prejudiced the accused-appellant'scase.
One other matter that needs our attention relates to thecomplaint of learned Counsel for the accused-appellant thatthe learned trial Judge has made use of inadmissible materialreferred to by learned Senior State Counsel in his writtensubmissions on the subject of disorders known as “Posttraumatic experience". However no such material was elicitedfrom the doctor or from any other medical witness. Suchbehavioural patterns attributed to rape victims surfaced forthe first time in the written submissions of learned SeniorState Counsel. It would appear that the trial Judge hasprofited from this inadmissible material when she stated in her
Kamal Addaraarachchi v. State (Hector Yapa, J.)
judgment as follows: “State Counsel made reference to severalwell known concepts relating to the offence of rape whichdescribe how rape victims go into denial or seek escape oroblivion in order to deliberately erase the event from theirmind.” (Vide page 610 of the judgment). It is well to rememberthat in the case of Regina u. Pinhamy,6> at 176 it was held in veiyclear terms that Counsel is not entitled to read to the juryextracts from any scientific treaties unless such extracthad been introduced by way of evidence in the course of atrial. . . Hence it is to be noted that the trial judge has usedinadmissible evidence in coming to an adverse finding againstthe accused-appellant.
On a careful consideration of all these matters it isabsolutely clear that the evidence of the prosecutrix isunreliable and untrustworthy. The learned trial judge hastotally misdirected herself in the assessment of her evidence.Further the judgment is unreasonable and cannot besupported having regard to unsatisfactory nature of evidencein the case. Besides the learned trial Judge has misdirectedherself on the law relating to consent in rape cases by holdingthat “the law has no place for tacit consent” It is a seriousmisdirection in law. This erroneous view on the part of the trialJudge prevented her from considering even a single item of thenumerous items available in this case to decide the issue ofconsent. This was a grave non direction amounting to amisdirection. The notion of tacit consent or implied consentwas too glaring in this case to be disregarded. Hence it hascaused very serious prejudice to the accused-appellant.
There were other submissions made on matters such askeeping the prosecutrix in police custody for 11 days, therefusal by Court to forward the letter marked P4 (alleged tohave been written by the prosecutrix to the appellant) to theE.Q.D. as requested by the defence. However it is unnecessary
Sri Lanka Lam Reports
12000) 3 Sri L.R.
to go into all these matters in view of the material alreadyconsidered. We have given our careful consideration to thesubmissions made by learned Deputy Solicitor General in hiscustomary thoroughness of facts and presentation. Howeverwe are unable to accept his submissions in view of theunsatisfactory nature of the evidence given by the prosecutrix.
One last word relating to the conduct and the behaviourof the accused-appellant on this occasion would beappropriate in the circumstances of this case. Undoubtedlythe accused-appellant in the situation he was placed did notconduct himself as a cultured man to say the least. After all.the prosecutrix was a young school girl immature and foolish,trying to force herself on him. Accused-appellant being a moremature person should have acted with restraint. Indeed thatwas his failing. However, in the final analysis, the law is not sounkind as to call him a rapist, for his failure to behave as acultured mem which the situation grievously demanded.
For the aforesaid reasons we allow the appeal, set asidethe conviction and sentence. The accused-appellant isacquitted.
KULATILAKA, J. – I agree.
KAMAL ADDARAARACHCHI v. STATE