COURT OF APPEALSISIRA DE ABREW. JUPALY ABEYRATNE. JCA 212/2003HC AMPARA 725/2002JULY 28, 29, 30, 2009
Kidnapping – Rape – Victim reliable witness or not? – Court should Seekcorroborative evidence – If not reliable? – Opinion of medical experts -Court to act on the opinion of the independent medical expert?
If the prosecutrix in a rape case is not a reliable or believable witness,the evidence seeking to corroborate her story cannot strengthenher evidence. Court should seek corroborative evidence only if theprosecutrix 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”.
When opinions of medical experts are led in evidence and if oneexpert is not an independent witness, Court should act on theopinion of the independent medical expert and should not placereliance on the other expert.
APPEAL from the judgment of the High Court of Ampara.
Cases referred to:-
Sunil and another vs. Attorney General 1986 1 Sri LR 230
Gurcharan Singh vs. State of Haryane AIR (1972) SC 2661
Bhoginbhai Hiribai vs. State of Gujarat 1983 AIR SC 753
Dr. Ranjith Fernando for accused appellant.
Sarath Jayamanne DSG for AG
Sri Lanka Law Reports
 1 SRI L.R.
July 30, 2009SISIRA DE ABREW, J.
The accused-appellant in this case was convicted forkidnapping a girl named Samitha Jeevani Kumari Basnayakeand was sentenced to a term of 5 years rigorous imprisonmentand to pay a fine of Rs. 7500/- carrying a default sentence of18 months rigorous imprisonment. He was also convicted forraping the said girl and was sentenced to a term of 10 yearsrigorous 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 theaccused-appellant has appealed to this Court. Facts of thiscase may be briefly summarised as follows:-
The accused-appellant was known to the prosecutrix inthis case as he was a teacher of her school. On the day of theincident around 12.30 p.m. when the prosecutrix wasreturning home after a tuition class the accused-appellantdragged her to a lonely place in the jungle which is about40 meters away from the road. Vide page 147 of the brief.He thereafter removed all her clothes including the vest andundergarment against her will. He removed his clothes aswell. Thereafter the accused-appellant put the prosecutrixon the ground and committed sexual intercourse on heragainst her will. She stated that the place where the sexualintercourse was committed was a rough surface. After theincident she noticed bleeding from her vagina. Vide page 92of the brief. According to her there were abrasions on herlegs. Vide page 151 and 163 of the brief. It has to be noted,at the very inception, that although she says that there wereabrasions on her legs, Dr. Herath and Dr. Gunasekera theMedical Officer and the District Medical Officer respectivelydid not observe abrasions on her legs when they examinedher on the 24th of March (the following day of the incident).Although the prosecutrix complains that the sexualintercourse was committed on a rough surface it has to be
Ajtth us. Attorney General
(Sisira De Abrew, J.)
noted here that the doctors who examined the victim on thefollowing 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 thetop of the body of the victim when he came to the place ofincident 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 victimsays that accused-appellant dragged, removed her clothes,forcibly put her on the ground and committed sexual inter-course against her will, she did not make any complaint toGunapala when he saw the incident. Vide page 433 of the brief.Instead of complaining she pleaded with him not to tell hermother. Vide page 434 of the brief. If the incident describedby the victim was committed by the accused-appellant, onewould expect her to complain immediately when the incidentwas witnessed by Gunapala who is an uncle of the victim.This conduct of the victim raises a serious doubt about thetruthfulness of her story.
The most important question that must be decided inthis case is whether the victim is a reliable witness or not.In order to find an answer to this question I must considerthe medical evidence in this case which played an importantrole. Dr. Herath who was the Medical Officer in charge of thehospital examined the victim on 24th of March (the follow-ing day of the incident) at 8.15 p.m. He used two torches toexamine the victim since the electricity supply, given to thehospital was not sufficient enough. He examined the victimfrom head to the foot but did not find any injury on her body.He did not find a hymen in her vagina. He further says thathe examined the vagina but did not find any blood or semen.Within 15 minutes of his examination he got down the DistrictMedical Officer Dr. Gunasekera and requested him to examinethe victim. Vide page 679 to 681 of the brief. Dr. Gunasekerawho examined the patient did not find any injuries on herbody. When he examined the vagina he did not find any freshinjuries nor did he find any blood in the vagina. At this stage
Sri Lanka Law Reports
it is relevant to note that according to the victim she was avirgin prior to the incident described by her and that shewas bleeding from her vagina after the incident. Vide page92 and 127 of the brief. According to the doctor if she was avirgin and the sexual intercourse was committed on the 23rd ofMarch, he would expect blood on her vagina. He further saysthat in such an event he would expect blood on the glovesthat he used to examine the victim's vagina. The evidenceof the two doctors, therefore, raises a serious doubt in thetestimonial trustworthiness of this story of the prosecutrix.According to both doctors they did not find any freshinjury on the body of the victim on the 24th of March. Quitesurprisingly in the following morning (25th) Dr. Herath foundabrasions on the hand of the victim. Vide page 682 of thebrief. After the said evidence of Dr. Herath, on the applicationof the defence Counsel, victim was recalled and questionedabout the injuries found on her hand. The victim admittedthat after the examinatidn by two doctors namely Dr. Herathand Dr. Gunasekera at Maha Oya Hospital her father cameand inflicted abrasions by abrading her hand. This evidencewas not challenged by the prosecution. Vide page 698 of thebrief. It is therefore seen that the father of the victim hadfabricated evidence to establish the charge against theaccused-appellant or to strengthen the version of the victim.This item of evidence raises a very serious doubt in the truthof the prosecution case. On the 25th of March Dr. Gunasekera,the D. M. O. of the Maha Oya Hospital, transferred the victimto Ampara Hospital apparently to get a report from the V.O.G.Dr. Lankathilaka Jayasinghe who was not a V.O.G. examinedthe victim in Ampara Hospital. He found two ruptures inthe hymen and expressed the opinion that they were freshinjuries. He stated that these injuries were 3 to 4 days old.Vide page 250 of the brief. Therefore it appears that thereare two expert medical opinions expressed by three doctors.At this stage it is relevant to consider the conduct ofDr. Lankathilaka Jayasinghe. According to the evidence ledat the trial after the discharge of the victim from Ampara
Ajith vs. Attorney General
(Sisira De Abrew, J.)
Hospital Dr. Jayasinghe with some members of the hospitalstaff visited the girl at home and gave her Rs. 300/- Videpage 688 of the brief. Dr. Lankathilaka Jayasinghe furtherinstructed the girl not to marry the accused since the victimwas underage. This instruction was given to victim’s mother.-Vide page 392 of the brief. When the victim said that shewas sent home by the principal of the school, Dr. Jayasingheremarked that the principal should be sent to jail. He furthersaid that he would send newspaper reporters. Vide page 688of the brief. His conduct therefore shows that he had takenan undue interest in this case. Considering all these mattersI conclude that Dr. Jayasinghe was not an independentwitness in this case. When opinions of medical experts areled in evidence and if one expert is not an independentwitness Court should act on the opinion of the independentmedical expert and should not place reliance on theother expert. There is no evidence in this case to say thatDr. Herath and Dr. Gunasekera are not independentwitnesses. When I consider all these matters I hold thatit is safe to place reliance on the opinions expressed byDr. Herath and Dr. Gunasekera. According to the opinionsexpressed by Dr. Herath and Dr. Gunasekera victim didnot have fresh injuries in her vagina nor did they find anybleeding in the vagina. Victim says she was a virgin priorto the incident and noticed blood in her vagina soon afterthe alleged sexual intercourse. But the two doctors whoexamined the victim on the following day did not find freshinjuries in her vagina. According to the prosecutrix she wasdragged a distance of 40 meters soon before the allegedsexual intercourse. She further says she sustained injuries onher legs. Vide page 151 and 163 of the brief. But the medicalevidence does not support this position. When I consider allthese matters I have to state here that her story that she wasraped on the 23rd is very doubtful and unacceptable. I furtherhold that she is not a reliable witness.
If the prosecutrix in a rape case is not a reliable orbelievable witness, the evidence seeking to corroborate her
Sri Lanka Law Reports
 1 SRIL.R.
story cannot strengthen her evidence. Court should seekcorroborative evidence only if the prosecutrix is a reliablewitness. I therefore hold that Gunapala cannot corroboratethe story of the prosecutrix. This view is supported by thejudicial decision in Sunil And Another vs. The AttorneyGenerall) wherein His Lordship Justice Dheeraratne heldthus:
*Corroboration is only required or afforded if the wit-ness requiring corroboration is otherwise credible. If theevidence of witness requiring corroboration is not crediblehis testimony should be rejected and the accused acquitted.Seeking corroboration of a witness’s evidence should notbe used as a process of inducing belief in such evidencewhere such eindence in not credible.
It is very dangerous to act on the uncorroborated testimonyof a woman victim of a sex ojfence but if her evidence isconvincing such eindence could be acted on even in theabsence of corroboration. ”
As I pointed out earlier the evidence of Dr. Herath andDr. Gunasekera contradicts the position taken up by theprosecutrix. 1 have earlier expressed the view thatDr. Lankathilaka Jayasinghe is not an independent medicalexpert. I have earlier expressed the view that Gunapala couldnot corroborate the evidence of the prosecutrix.
In a charge of rape why does Court expect the victim’sevidence to be corroborated by independent evidence.I now advert to this question. Charge of rape being theeasiest charge that a woman can make against a manin this world, Courts in some cases of rape especiallywhen the accused claims the allegation to be a false oneor when the accused claims that sexual intercoursewas performed with the consent of the woman, insist oncorroboration of the testimony of the prosecutrix.
Ajith vs. Attorney General
(Sisira De Abrew, J.)
This may be because the act of sexual intercourse which mayhave been performed with the consent of the woman can laterturn out to be an act of sexual intercourse without herconsent. If I may put it in another way, a woman with whoseconsent the act of sexual intercourse was performed canlater claim that it was done against her will or without herconsent. This can be due to failure on the part of the man tofulfill what had been promised at the time or before the actof intercourse and/or she consented to an act which she isnow ashamed of. In this connection I would like to quote apassage from Glarwille Williams Proof of Guilt 3rd Edition page158,159-
“On a charge of rape and . similar offences it is thepractice to instruct the jury that it is unsafe to convict onthe uncorroborated evidence of the alleged victim. The ruleapplies to a charge of indecent assault, or any sexualoffence, including an unnatural offence between males.There is a sound reason for it, because these casesare particularly subject to the danger of deliberatelyfalse charges, resulting from sexual neurosis, phantasy,jealousy, spite or simply a girl’s refusal to admit that sheconsented to an act of which she is now ashamed. ”
In Gurcharan Singh vs. State of Haryane AIR® IndianSupreme Court held thus:
“Vis a rule of prudence, however, court normally looksfor some corroboration of her testimony so as to satisfyits conscience that she is telling the truth and that theperson accused of rape on her has not been falselyimplicated. ”
However I am mindful of the decision of the IndiemSupreme Court in Bhoginbhai Hirjibai vs. State of Gujarat*31wherein the Indian Supreme Court stated thus:
“In the Indian setting, refusal to act on the testimony of avictim of sexual assault in the absence of corroboration asa rule, is adding insult to the injury. ”
Sri Lanka Law Reports
[2009} 1 SRIL.R.
Applying the principles laid down in the above judicialdecisions, I hold that it is very dangerous to act on theuncorroborated testimony of a victim of a sexual offence.However, if the Court can without any hesitation, accept andbelieve that the story narrated by her is true then the Courtcan act on such evidence even without corroboration. I wouldlike to state here that Court, in cases of rape, as a rule ofprudence normally looks for corroboration of her testimonyin order to satisfy its conscience that she is telling the truth.In the instant case medical evidence of Dr. Herath andDr. Gunasekera contradicts her story. I
I have considered the evidence in this case and am of theopinion that, in view of the observation that I have made above,it is dangerous to act on the testimony of the prosecutrix.For the reasons stated above I hold that the prosecution hasnot proved both charges against the accused-appellant. Itherefore set aside the conviction and the sentence and acquitthe accused-appellant of the charges levelled against him.
ABEYRATHNE, J. -1 agree.
AJITH vs ATTORNEY GENERAL