COURT OF APPEAL.
HECTOR YAPA, J. (P/CA)
C.A [P.H.C.] APN 19/99.
H.C. KURUNEGALA 51/977™, 25™,26™ SEPTEMBER, 2000.
Rape – S. 364(2) – Penal code – Amsntpnent 22 of1995 – Statutory Rape -Consent immaterial – Medical evidence not supportive of sexual act
The Accused – Respondent was indicted fon^Ommitting Rape,punishableunder S. 364(2)(e) of the Penal Code as amended by Act 22 of 1^05. Judgesitting without a juiy acquitted the accused.
The Athmey General moved in Revision
As seen frorrjjthe evidence the complaint of rape was made to thePolfce not at the instance of the posecutrix but at the instance of her.parents.
Medical evidence had very clearly contradicted the evidence of theprosecutrix.
APPLICATION in Revision from the Judgment, of the High Court ofturanegala.
Sarath Jayamcume, S.S.C for the Petitioner.
LV.P. Weththasinghe with Dr. Ranjtt Fernando. Ms. Anqja Jayaratneand Ms Sandamali Munasinghe for Accused – Respondent
Cur. adv. vult.
Attorney General v. Priyantha
(Hector Yapa, J. P/CA)
September 26, 2000.
HECTOR YAPA, J. (P/CA)The accused-respondent in this case was indicted in theHigh Court ofKurunegala for committing rape on DelpachithraArcharige Ramani Wijeratne an offence punishable underSection 364(2) (e) of the Penal Code as amended by Act No. 22of 1995. After trial before the High Court Judge sitting withouta jury the accused-respondent was acquitted by the learnedHigh Court Judge on 14.12.1998. In this application the Hon.Attorney General is seeking to revise the said verdict ofacquittal.
At the trial the pft^cution led the evidence of Dr. SenakaSenanav^ke, the prosecutrix Ramani Wijeratne, mother of theprosecmrix Kumusawathi, Manageress of the Guest HouseOmega Inn, Somalatha Sendanayake. Briefly the evidence ofthe prosecutrix was that she and the accused-respdndenthad a love affair for about a month before the date of theincident which was on 18.09.1996. On the said dateaccused-respondent wanted the prosecutrix^o meet him atKuliyapitiya and when she met him there at about 8.30 aim.he had taken her to the guest house referred to as “Omega Inn”at Aswet&ddwa Kuliyapitiya. Having gone to the guest houseaccused-respondent had taken the prosecutrix into a roomand after removing her clothes by force had sexual intercoursewith her. After the act of sexual intercouse there was bleedingand there was bleod in her trouser (meaning the nicker) whichshe had washed after returning home. However it is to be notedthat at one stage in her evidence, she had taken up the positionthat she was not wearing a nicker on the said date. It was theevidence of the prosecutrix that the act of sexual intercoursewas committed on her by the accused-respondent on thepromise that he would marry her. She testified to the fact thatit was for the first time she ever had any sexual relationship inthis manner and thereby tried to impress upon the Court thatshe was a virgin. Prosecutrix further said that after the sexualact at the guest house she came back home and had written
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a letter to the accused-respondent. While she was reading thesaid letter, the mother of the prosecutrix had seen it and had^tabbed it despite her attempt to destroy it by putting itinto the fire. When the parents of the prosecutrix came toknow about the said act of sexual intercourse with theaccused-respondent a complaint had been made to theKuliyapitiya Police. Thereafter police commenced investiga-tions and the prosecutrix came to be examined by the doctor.According to the evidence of Doctor Senanayake whohad examined the prosecutrix on 23.09.1996, he found noinjuries on the prosecutrix and in addition her hymen wasabsent. Doctor said that the absence of her hymen would havetaken place on a date veiy much before thehate of the allegedact of sexual intercourse on 18.09.IJSSS! Due to the absenceof any injuries the doctor was unable to say with l^rtaintywhether penetration had taken place on 18.09.1996.
Wfien the defence was called the accused-appellant madea dock statement denying the said incident and stated that hewas innocent of the charge.
At the hearing of this application learned Senior StateCounsel submitted that the verdict of acquittal arrived at bythe learned High Court Judge on 14.12.1998 shftujd be setaside and further that a retrial be ordered on the sameindictment. Learned Senior State Counsel's argument wasthat the prosecutrix being under 16 years of age at the time,her consent was immaterial and thereto^ M. was a case ofstatutory rape. Hence Counsel contended that the learnedrial Judge was in error when he concluded that there was nomaterial to corroborate the evidence of the prosecutrix.
Learned Senior Counsel for the accused-respondent onthe other hand argued that on the medical evidence alone theprosecution case had to fail in the High Court. Counselsubmitted that according to Dr. Senanayake who examinedthe prosecutrix he had observed that there was an absence ofthe hymen which had taken place before the alleged sexual act
Attorney General v. Priyantha
(Hector Yapa, J. P/CA)
complained of by the prosecutrix, i.e. on 18.09.1996. Besidesthe doctor was not in a position to state clearly as to whetherany sexual act had taken place on 18.09.1996 due to thefabsence of any injuries on the body of the prosecutrix andmore specially in her private parts. Counsel also referred to thefact that the accused-respondent in his dock statement haddenied any such incident (act of sexual intercourse) havingtaken place on 18.09.1996.
We have carefully considered the evidence and thesubmissions of Counsel in this case. It is to be noted that the
doctor had testified vgiy clearly that the prosecutrix had noinjuries. Besides h£r Iwmen was absent and according to thedoctor it had happenecrfe^i a date prior to the alleged act ofsexual ij^rcourse by the accused-respondent. Under thesecircumstances the evidence of the prosecutrix that she was_,bleeding soon after the alleged act of sexual intercourse hy theaccused-respondent becomes unreliable. Furthermore theprosecutrix went to the extent of saying that there was bloodin her trouser (nicker) which she had washed after returninghome. If that was the case, the doctor should "have observedsome injuries. On this matter one cannot ignore her evidence(initially) whsre she said that she was not wearing a nicker onthe date of the alleged sexual act. All these matters go to showthat she has not been truthful to Court. Besides it is to beremembered that as seen from the evidence the complaint ofrape against the accused-respondent was made to the policenot at the instance of the prosecutrix but at the instance of theparents of the prosecutrix. Further due to the absence of anyinjuries on the body of the prosecutrix doctor was not in aposition to state with certainty whether penetration had takenplace on 18.09.1996. Normally one would not expect anyexternal injuries to be found on the prosecutrix since it wouldappear that she had consented to the sexual act. However inview of her evidence that she was a virgin until 18.09.1996 andthe fact that after the sexual act she was bleeding, one wouldhave expected some injuries or evidence of bleeding coming
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120011 2 Sri L.R.
from the doctor. Therefore it would appear that the medicalevidence had very clearly contradicted the evidence of the''prosecutrix. Hence learned trial Judge was correct when heobserved that the evidence of the prosecutrix had not beencorroborated by the medical evidence. On the contrary asstated before medical evidence had the effect of contradictingthe evidence of the prosecutrix. Further the trial Judge hasmentioned the fact that there is a serious doubt as to whetherthe complaint made to the police by the prosecutrix and hermother was made voluntarily or not and hence there is a doubtas to whether the incident has taken place in the way asdescribed by them in Court*
Learned Counsel for the accused-respondent madefurther submissions with regard tJTailure of the prosecutionto produce the original birth certificate of the prosecutrix,contradictory nature of her evidence relating to the nicker shewas Wearing on the date in question and the delay of over 5 cmonths to file this revision application. However having regardto the main weakness in the prosecution case as referred toabove, it is urmecessary to consider these submissions of thelearned Counsel for the accused-respondent. Therefore in theattendant circumstances of this case, we are of the view thatthe learned trial Judge has acted correctly when hg came to theconclusion that the medical evidence was not supportive of thesexual act having taken place on 18.09.1996 in the manner astestified by the prosecutrix. Hence it would appear that theprosecution has failed to establish the case against theaccused-respondent beyond reasonable dohbt.
For the above reasons, we are unable to interfere withthe verdict of acquittal arrived at by the learned trial Judgeon 14.12.1998. Therefore this application is refused andaccordingly it is dismissed.
KULATILAKA, J.1 agree