Amarasinghe and Another v Rev. Sumathiratne and another
AMARASINGHE AND ANOTHERv
REV. SUMATHIRATNE AND ANOTHERCOURT OF APPEALNANAYAKKARA, J.
CA 21/2000H.C.GAMPAHA 55/98SEPTEMBER 22, 2003
Penal Code – Amendment Act, No. 22 of 1991, Act, No. 29 of 1998 – S. 363 B (2)365 B(1)(a) – Sexual abuse – Burden of Proof – Non appreciation and miscon-ception of the legal position in regard to burden of proof.
The accused – respondent was charged with having committed grave sexualabuse on two girls. After trial, the accused – respondent was acquitted.
The petitioners who were the victims of the crime moved in Revision to have theverdict of acquittal set aside.
It appears that the High Court Judge has made a serious error in regardto the burden of proof and the legal principles applicable to it in evaluat-ing the evidence before him
He has placed a burden higher than that of proof beyond reasonabledoubt.
Non appreciation and misconception of the legal position in regard to bur-den of proof has resulted in a grave miscarriage of justice.
K. Thiranagama with M.J.A. Hassan and Ms.Hasanthi Ratnayake for petitioners.Dr. Ranjith Fernando with Ms. Harshani Gunawardena for accused respondent.Ms. Ayesha Jinasena, S.C. for Attorney-General.
Cur. adv. vult
November 27, 2003
NANAYAKKARA, J.In this case the accused-respondent was charged in the High Courtof Gampaha, with having committed grave sexual abuse on two girls,an offence punishable under section 365 B (2) read with section 365 B(1) (a) of the Penal Code as amended by the Penal Code AmendmentAct, No.22 of 1995 and No.29 of 1998.
Sri Lanka Law Reports
 3 Sri L.R
At the end of the trial at which the victims (two girls) and severalother witnesses testified, the learned trial judge acquitted the accused-respondent of the charges levelled against him.
The petitioners who were the victims of the crime have now invokedthe revisionary jurisdiction of this court to have the verdict of acquittal ioentered in favour of the accused-respondent set aside.
At the hearing of this application many matters which have a directbearing on the facts as well as on law were urged by the petitioners.
Going through the judgment it appears the learned High CourtJudge has made a serious error in regard to the burden of proof and thelegal principles applicable to it in evaluating the evidence led before him.
It appears that he has placed a burden higher than that of proofbeyond reasonable doubt as the offence with which the accused-respondent was charged carries a minimum mandatory jail sentenceon conviction.20
This is evident from the following excerpt taken from the Judgment:
It appears that the learned trial Judge has failed to appreciate thelegal principles governing the burden of proof in offences of this nature. 30
Non appreciation and misconception of the legal position in regardto burden of proof in my view has resulted in a grave mis-carriage ofjustice.
Therefore quite apart from other matters urged, at the hearing ofthis application, this ground alone would in my view be sufficient to setaside the order of acquittal entered in the case.
Accordingly a re-trial is ordered and the case is remitted to the HighCourt of Gampaha for re-trial.
BALAPATABENDI, J.I agree.
Appeal allowed. Re-trial ordered.