REPUBLIC OF SRI LANKA
COURT OF APPEALSISIRA DE ABREW. JUPALY ABEYRATNE. JCA 29/04
HC RATNAPURA 107/2002JULY 7, 2009
Evidence Ordinance Section120 (2), 120 (3) – Penal Code 363 (a) -Rape-Both get married – Convicted – Prosecutrix wife of accused? – Is theprosecutrix a competent witness to give evidence against the accused- Does Section 120 (3) apply when sexual intercourse is performed onhis wife by the husband? – Marriage Registration Ordinance Section 19,Section 42 – Criminal Procedure Code, Section 607.
The accused – appellant was convicted for raping a girl. Two years afterthe incident both of them got married. The trial Judge concluded that,the prosecutrix was a competent witness to give evidence.
It was contended that, the prosecutrix being the wife of the accused isnot a competent witness, and the trial Judge had used illegal evidenceto convict the accused.
It cannot be concluded that sexual intercourse was performed by theaccused on the prosecutrix without her consent.
To call the wife of the husband under Section 120 (3), it shouldbe proceedings instituted against the husband for causing bodilyinjuiy or violence to the wife. Section 120 (3) envisages asituation where husband or wife assaults his or her spouse – butnot when sexual intercourse was performed on his wife by thehusband.
The prosecution in a case of rape cannot call the wife of theaccused to give evidence against her husband. The prosecutrix isnot a compatible witness against the accused unless and until themarriage is declared void by the District Court.
Soman Kumara vs Republic of Sri Lanka
(Sisira De Abrew, J.)
APPEAL from a judgment of the High Court of Ratnapura.Case referred to:
K. C. Morjan vs. Attorney General – CA 3/2002-CAM 13.1.2003
Dharmasiri Karunaratne for accused-appellantSarath Jayamane DSG for AG
July 16, 2007SISIRA DE ABREW, J.
Heard both counsel in support of their respective cases.
The accused-appellant in this case, was convicted forraping a girl named Kuttigahawattalage Chandrika Priyad-harshani and was sentenced to a term of 10 years rigorousimprisonment and to pay a fine of Rs. 10,000/- carrying adefault sentence of one years imprisonment. This appeal isagainst the said conviction and the sentence.
Learned Counsel for the accused-appellant submits thatthe prosecutrix is not a competent witness to give evidenceagainst the accused-appellant since she is the wife of theaccused-appellant. Therefore the most important questionthat must be decided in this case is whether the prosecutrixis a competent witness to give evidence against the accused-appellant. The prosecutrix in her evidence admitted that theaccused-appellant was her husband (vide page 49-51). Shehas further admitted that the said marriage was in existenceat the time she gave evidence.
In order to find an answer to the question that must bedecided in this case, it is necessary to consider section 120(2)and 120(3) of the Evidence Ordinance.
120(2) of the Evidence Ordinance read as follows:-
Sri Lanka Law Reports
 1 SRILR.
“Incriminalproceedingsagainstanypersonthehusbandor wife of the such person respectively shall be a competentwitness if called by the accused, but in that case allcommunications between them shall cease to be privileged”.
120(3) reads as follows:-
“In criminal proceedings against a husband or wife forany bodily injury or violence inflicted on his or her wifeor husband, such wife or husband shall be a competentwitness and compellable witness.”
It is necessary to mention here that according to herevidence she is not judicially separated from the accused-appellant. Therefore section 363(a) of the Penal Code does notapply to the facts of this case.
In order to find an answer to the question that must bedecided, it is also necessary to find out whether the sexualintercourse was performed on the prosecutrix with or withouther consent. Prosecutrix says that the sexual intercourse wasperformed without her consent.
According to Agoris who is the grandfather of theprosecutrix, the accused-appellant on the day of the incidentcame to the prosecutrix’s house and thereafter both theprosecutrix and the appellant disappeared from the house.Later when Agoris went in search of them, he found theaccused-appellant and the prosecutrix behaving as husbandand wife. When both of them saw Agoris they ran way fromthe place.
When we consider the said evidence, we are unable toconclude beyond reasonable doubt that the appellantperformed sexual intercourse on the prosecutrix withouther consent. Two years after the incident, both of them gotmarried. When one considers section 120(3)of the EvidenceOrdinance it is possible to argue that bodily injury wouldbe caused to the female when the sexual intercourse was
Saman Kumara vs Republic of Sri Lanka
(Sisira De Abrew, J.)
performed and therefore wife is a competent witness to giveevidence against the husband. Can bodily injury be caused toa person with his consent? The answer is No.
In this case, we are unable to conclude that the sexualintercourse was performed by the appellant on the prosecutrixwithout her consent. When we consider the evidence,we feel that sexual intercourse was performed with herconsent. Therefore we are unable to -conclude beyondreasonable doubt that bodily injury or violence has beencaused to the prosecutrix.
Further to call the wife of the accused under section 120(3)of Evidence Ordinance, it should be the proceedings institutedagainst the husband for causing bodily injury or violence tothe wife. Section 120(3) of the Evidence Ordinance envisagesof a situation where husband or wife assaults his or herspouse, but not when sexual intercourse was performed onhis wife by the husband.
For the above reasons, I hold that the section 120(3) ofthe Evidence Ordinance is not applicable to the facts of thiscase. The prosecutrix in this case was called to give evidencenot by the accused but by the prosecution. It is thereforeclear that the prosecution in a case of rape cannot call thewife of the accused to give evidence against her husband.
For the above reasons, I hold that the prosecutrix in thiscase was not a competent witness to give evidence against theaccused-appellant. When this question was raised before thelearned trial Judge, he concluded that the prosecutrix was acompetent witness to give evidence. We have gone throughthe reasons given by the learned trial Judge and we areunable to agree with the said reasons.
In the case of K. C. Morgan vs. Attorney-general111 the
same question arose for consideration. In the said case, theprosecutrix was the legally married wife of the accused. Whenthe matter was brought to the notice of the trial Judge, he
Sri Lanka Law Reports
f2009] 1 SRI LR.
over-ruled the objection raised by the defence. His LordshipJustice Raja Fernando held as follows:- “In terms of section19 of the Marriage Registration Ordinance or section 607 ofthe Civil Procedure Code it is only the District Court thathas the jurisdiction to either dissolve or annul a marriage.Further section 42 of the Marriage Registration Ordinancemakes the certificate of marriage proof of marriage. We holdthe prosecutrix was not a compellable witness against theaccused unless and until the marriage is declared void by theDistrict Court”.
In the instant case the marriage between the prosecutrixand the accused-appellant has not been dissolved by theDistrict Court. I have earlier held that the prosecutrix in thiscase was not a competent witness to give evidence against theaccused-appellant. I therefore hold that the learned trialJudge had used illegal evidence to convict the accused-appellant. This is sufficient to vitiate the conviction.
For above reasons, we set aside the conviction and thesentence and acquit the accused-appellant of the chargelevelled against him.
We would like to mention here that the CommissionerGeneral of Prisons is not entitled to keep the accused-appellantin his custody once he receives a copy of this judgment. Itis not necessary for the Prison Authorities to produce theaccused-appellant in the High Court and get an order ofrelease.
UPALY ABEYRATHNE, J. -1 agree.
SAMAN KUMARA vs REPUBLIC OF SRI LANKA