018-SLLR-SLLR-2009-V-1-CHAMINDA-vs-REPUBLIC-OF-SRI-LANKA.pdf
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CHAMINDA VS REPUBLIC OF SRI LANKA
COURT OF APPEALSISIRA DE ABREW. JABEYRATNE. JCA 248/2007HC MATARA 63/2005OCTOBER 13, 2009
Rape – Ingredients? – Subsequent conduct – Test of probability -Impugning a Judicial record – Contradiction of the record – Demeanour- Testimonial trustworthiness – Primary facts.
The accused-appellant was convicted of raping a woman named L. Thecontention of the accused-appellant was that, he performed sexualintercourse on the woman with her consent.
Held:
In order to establish a charge of rape, the prosecution must prove that(1) the accused performed sexual intercourse on the woman (2) theaccused did the above sexual act without her consent beyondreasonable doubt. When one considers the subsequent conduct ofthe prosecutrix it does not satisfy the test of probability. It raises areasonable doubt whether there was consent, and the 2nd ingredienthas not been proved beyond reasonable doubt.
A litigant is not entitled to impugn a judicial record by making aconvenient statement before the Court of Appeal. 3
(3)An appellate Court will not lightly disturb the findings of a trial judgewho had come to a favourable finding with regard to testimonialtrustworthiness of a witness whose demeanour and deportment hadbeen observed by the trial judge- Findings of primary facts by a trialjudge who hears and sees witnesses are not to be lightly disturbed onappeal.
Per Sisira de Abrew. J.
“When a judge who after observing demeanour and deportment of wit-ness decides to convict an accused person in a criminal case and if hisdecision is proved to be wrong, Court of Appeal should interfere withsuch decision”.
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APPEAL from a judgment of the High Court of Matara.
Cases referred to:-
OIC Ampara Police Station vs. Bamunusinghe Amchchige Jayasinghe -CA 37/98 HC (PHC) APN 38/98 CAM 8.9.98
Qunawardane vs. KeUart 48 NLR 52
Ahuis vs. Piyasena Fernando 1993 1 Sri LR 119
Kapila Suriyaamchchi with Arturadha Bandara for accused-appellantV. K. Malalgoda DSG for Attorney General.
Cur. adv. vult
November 9, 2009SISIRA DE ABREW, J.
The accused appellant (the appellant) in this case wasconvicted for raping a woman named Thanuja Lakmaliand was sentenced to a term of eighteen years rigorousimprisonment (RI) and to pay a fine of Rs. 1000/- carrying adefault sentences of three months RI. Being aggrieved by thesaid conviction and the sentence the accused appellant hasappealed to this court.
According to the prosecution case the appellant enteredthe house of the prosecutrix’s through the roof of her houseand raped her. The appellant had removed the glass sheetplaced on the roof and entered the house. At the time of theincident her husband was not at home since one or two daysprior to this date he had gone to Deniyaya to do his usualwork.
The appellant, in his evidence, admitted that heperformed sexual intercourse on the woman with herconsent. According to the appellant this was the 4th timethat he performed sexual intercourse on her. On all fouroccasions he, with her consent, performed sexual intercourse.He takes up the position that on all four occasions he camethrough the roof in the night after removing the glass sheeton the roof. It was not difficult, according to the appellant, to
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come through the roof as there was a table right under theplace where the glass sheet was kept. He climbs the orangetree adjacent to the roof and comes to the roof. Accordingto the appellant who was living in the neighborhood of theprosecutrix when he met her on 22.10.2000 around 12.00noon, she invited her to come around 9.00 p.m. as herhusband was not at home. She further instructed him to taptwice on the door and if she did not wake up to enter thehouse as he previously did (through the roof). However he toldher that he would not come around 9.00 p.m. as he wouldbe watching the match and would come late in the night. Asarranged, he tapped on the door twice and since she did notwake up, he entered the house through the roof and wokeher up by shaking her leg. Thereafter he waited in the halltill she put her child to sleep. After having sexual intercoursewith her consent he adjusted the glass sheet. It could be donewhen one stands on the table. This was the summary of theappellant’s evidence.
In order to establish a charge of rape, the prosecutionmust prove the following ingredients beyond reasonabledoubt:
The accused performed sexual intercourse on the woman.
The accused did the above sexual act without her
consent.
If there is a reasonable doubt on one of the ingredientsthe accused must be acquitted. Further if the evidenceindicates that sexual intercourse was performed with herconsent, the accused must be acquitted. The most importantquestion that must be decided in this case is whetherthe prosecution has proved the 2nd ingredient beyondreasonable doubt. I now advert to this question. In or-der to decide whether the 2nd ingredient has been proved
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beyond reasonable doubt her subsequent conduct must beexamined. Learned Counsel for the appellant contendedthat her evidence did not satisfy the test of probabilityespecially when one considers her subsequent conduct. I nowadvert to this contention.
The appellant entered the prosecutrix’s house throughthe roof. Both the prosecutrix and the – appellant admitthis fact. After the appellant performed sexual intercourseon the woman the appellant got on to the said table andadjusted the glass sheet. She was watching when the appellantadjusted the glass sheet. Vide page 100 and 102 of the brief.She says after the incident the appellant opened the frontdoor and left the house. Vide page 57 of the brief. But shecontradicts this position at page 103 of the brief. She saysthat she opened the door when the appellant could not openit. Following day one Chaminda who was working with herhusband at Deniyaya came to her house. But she did notsend a message through Chaminda asking her husband tocome home. Vide page 75 of the brief. No one can expect herto divulge the incident to Chaminda but it was natural for herto send a message to her husband. Following day she wentto the Grama Sevaka’s house but she did not complain aboutthe incident. She says she went to the Grama Sevaka’s housein order to complain about the incident but did not do so.She was frightened to complain since her husband was notat home. She went and slept with her sister on the followingday but she did not tell her about the incident. When oneconsiders her subsequent conduct, her evidence that sexualintercourse was performed without her consent, does notsatisfy the test of probability. Her subsequent conduct raisesa reasonable doubt whether there was consent to thesexual intercourse. In fact her subsequent conduct indicatesthat sexual intercourse was performed with her consent.
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When I consider all these matters I hold the view that theprosecution has not proved the 2nd ingredient beyondreasonable doubt. On this ground alone the accused must beacquitted.
There is a very important item of evidence that mustbe considered. When questioned as to what happened toher clothes soon before the sexual intercourse she said thatshe lifted both her underskirt and the frock. Vide page 53of the brief. Learned DSG contended that this was a typingmistake. If that is so the prosecuting State Counsel wouldhave moved to amend the proceedings. But no suchthing has been done. In my view a litigant can’t make aconvenient statement in court and contradict a judicialrecord. In this regard I am guided by the following judicialdecisions. OIC Ampara police Station Vs. BamunusingheArachchige Jayasinghe(1) Jayasuriya J remarked: “A litigantis not entitled to impugn a judicial record by making aconvenient statement before the Court of Appeal.” InGunawardane vs KelartP1 Supreme Court held: “The SupremeCourt will not admit affidavits which seek to contradict therecord kept by the Magistrate”
In my view, Court cannot disregard an item of evidencewhich shakes the entire prosecution case on the contentionthat it was a typing mistake. Although the learned DSGcontended that this was a typing mistake the appellant in hisevidence says that the prosecutrix raised her frock a little andthe rest was raised by him. Vide 158 of the brief. Prosecutrix’sevidence therefore suggests that the sexual intercourse wasperformed with her consent. On this evidence alone theaccused must be acquitted. It appears that no one hasdrawn the attention of the learned trial judge to this point.For the above reasons I further hold that the evidence of theprosecutrix that the sexual intercourse was performed
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without her consent cannot be accepted beyond reasonabledoubt.
The learned trial judge rejected the appellant’sevidence. According to him the appellant had selected the mostdifficult method to enter the house and had not explained thereasons for doing so. But the appellant at pages 176 and178 explained the reasons. According to the appellant he hadreceived instructions from the prosecutrix to enter the housethrough the same way that he had entered earlier if shewould not wake up after tapping on the door. Further he saysthat he did not tap hard on the door since the people in theneighbourhood would hear the sound. Therefore it appearsthat the reason given by the learned trial judge to reject theappellant’s evidence is wrong. Learned trial judge in dealingwith the appellant’s evidence further observed that theappellant had the opportunity of getting the door openedafter tapping on the window of the room where theprosecutrix was sleeping but he had not explained thereasons why he did not do so. But the appellant at page 178says that if he tapped on the window Nancy whose house wasvery close to this house would hear the sound. IP Calderawho visited the scene says that there were houses adjacent tothis house. Thus the said reasons given by the learned trialjudge are wrong. Learned trial judge considered certaincontradictions marked with the statement of the appellantmade to the police and decided to discredit the appellant’sevidence on the basis that they were vital contradictions.I have gone through these contradictions and am of theopinion that they are not vital contradictions when I considerthe entire evidence led at the trial. I have gone through theappellant’s evidence and see no reasons to reject it.
For the above reasons, I hold that the decision of thelearned trial judge to convict the appellant for the offence
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is wrong. Learned trial judge observed the demeanourof the prosecutrix and came to a favourable finding withregard to her testimonial trustwortheness. Court of Appealwill not lightly disturb the findings of a judge who had cometo a favourable finding with regard to the testimonialtrustworthiness of a witness whose demeanour anddeportment had been observed by the trial judge. This view issupported by the judicial decision in Alwis Vs. PiyasenaFemandof31 wherein G.P.S. de Silva CJ remarked thus: “It iswell established that findings of primary facts by a trial judgewho hears and sees witness are not to be lightly disturbed onappeal.” But when a judge who after observing demeanourand deportment of witness decides to convict an accusedperson in a criminal case and if his decision is proved to bewrong, Court of Appeal should interfere with such decision. I
I have gone through the evidence led at the trial andhold the view that the prosecution has not proved beyondreasonable doubt that sexual intercourse was performed onthe prosecutrix without her consent. In fact the evidenceindicates that sexual intercourse was performed on theprosecutrix with her consent. For the above reasons Ihold that the charge of rape has not been proved beyondreasonable doubt. I therefore set aside the conviction and thesentences and acquit the appellant of the charge with whichhe was convicted.
ROHINI MARASINGHE, J. – 1 agreeAppeal allowed.