COURT OF APPEALHECTOR YAPA, J.
H. C. ANURADHAPURA 8/991st JUNE, 2000
Penal Code S.364(2) – Rape – Non direction on a vital question of fact – Doesit vitiate a conviction?
The date of the incident as deposed toby the Prosecutrix was 22.8.1998.It was her position that she was a virgin until 22.8.1998. She had onlycomplained to the Police 2 days later – 24.8.1998. The Medical Expert hadobserved the tear of the hymen, but stated that the tear had taken place8 days or more prior to her examining the prosecutrix which was on24.8.1998.
According to the Medical Expert the probable date would be 16.8.88or a date prior to that date. Neither the State Counsel nor the trialJudge had invited her to elucidate her opinion any further orelaborate the grounds upon which the opinlfcn was based.
The crucial issue was whether the prosecutrix had been infact ravished on 22.8.1998 by the accused appellant. Thetrial Judge has refrained from making any assertion in respectof this matter.
This non direction on a vital question of fact tantamounts to a graveerror of law which is sufficient to vitiate the conviction.
APPEAL from the Judgment of the High Court of Anuradhapura.
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Case referred to :
Mendis vs. Queen – 54 NLR 177 at 179.
Dr. Raryith Fernando with Ms Anoja Jayaratne and Ms SandamaliMunasinghe for Accused Appellant.
ilha. Fernando D. S. G., for the Attorney General.
Cur. ado. vult.
July 06, 2000.
KULATILAKA, J.The accused-appellant was indicted in the High Court ofAnuradhapura for committing the offence of rape on DanapalageDilrukshi Saumyatilaka an offence punishable under Section364(2) of the Penal Code. The trial was conducted before aJudge of the High Court sitting without a jury and at the trialthe accused-appellant was found guilty and accordingly wasconvicted and sentenced to a term of ten years’ rigorousimprisonment.
The facts in brief are to the following effect. The prosecutrixin this case Danapalage Dilrukshi Saumyatilaka was at thetime of the alleged incident a girl of 15 years and 2 months asborne out by her birth certificate marked P2. Hence theaccused-appellant was charged in terms of Section 364(2) ofthe Penal Code. She was living with her sister as her motherhad gone abroad fSr employment. The accused-appellant hadbeen 20 years of age at the relevant time and was employed inthe Navy, and had come home on leave. He was distantlyrelated to the prosecutrix and at the time of the incident theywere having a love affair.
The date of the incident as deposed to by Dilrukshi was 22August 1998. A characteristic feature in this prosecution wasthat the alleged incident of the accused-appellant ravishingDilrukshi. had come to light only after Dilrukshi's sister’s
Premadasa v. Stale(Kulalilaka, J.)
husband had over-heard a conversation between the accused-appellant and one Gunapalage Rohana while they were in theact of partaking of liquor which was to the effect that theaccused-appellant had sexual intercourse with the prosecutrix(said in colloquial language). The prosecutrix testified thatafter her sister’s husband had complained to his wife (sister ofthe prosecutrix) of what he had over-heard, her sister hadbeaten Dilrukshi questioning her as to what-took place and theprosecutrix had come out with her story. Dilrukshi testifiedthat prior to the date of the incident the accused-appellantused to see her at her sister s place since they were in love. Shestated to Court that they had even plans of getting married.
On 22.8.98 the accused-appellant had come to her sister’shouse around 3 p. m. Both her sister as well as her brother-in-law were not in the house. Apart from Dilrukshi her sister’stwo children of tender years had been present in the house.Thereupon the accused-appellant had dragged her inside thehouse put her on a bed and had sexual intercourse withDilrukshi despite her resistance. While they were still on thebed there was a knock at the door and Dilrukshi had left thebed and gone to tire verandah inorder to see who had come.She found an aunt of hers at the door step asking for some tealeaves to which request she had obliged. When she came backshe found the accused-appellant speaking to the two children.She categorically stated that she was a virgin until 22 August1998. Thereafter the accused-appellant had left the house.It is interesting to note that the prosecutrix had complainedto the police belatedly two days later on 24 August 1998.No explanation had been elicited from this witness regardingthe delay in making her complaint of rape. The policehad produced Dilrukshi before Dr. Hemamali Wimalasiri.According to the medico legal report prepared by Dr. HemamaliWimalasiri who had examined the prosecutrix on 24.8.98 at5.30 p. m. she had noted the injuries on the prosecutrix in thefollowing terms: “Hymen not intact, no bleeding, reddenedarea at perineum just below the hymen. No other injuries". In
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the column where “short history given by patient" had to beentered the Doctor has recorded the following observation:“History of rape on 22.8.98”. This report had been marked PI.
Witness Rohana’s evidence was that he met the accused-appellant on 22 August 1998 and the latter had invited him fora drink stating that it was an occasion to celebrate. He furthertestified that while they were in the act of partaking of liquorthe accused-appellant had confessed to having had sexualintercourse with the prosecutrix. At that point of time theprosecutrix's brother-in-law Henni had barged in and queriedfrom the accused-appellant about the utterance he made toRohana, albeit, the accused-appellant had denied maltingsuch an utterance. According to Sub-Inspector Nimal Pererathe Police had recorded a complaint of rape made by DanapalageDilrukshi on 24.8.98 and thereafter had produced theprosecutrix before Dr. Hemamali Wimalasiri. The accused-appellant had surrendered to the police on the following day.
The main ground adverted to by the learned counsel forthe accused-appellant in the course of his submissions is tha tthe learned trial Judge has failed to consider and evaluatethe discrepancy inter se arising from the evidence of Dilrukshivis-a-vis the medical expert Dr. Hemamali Wimalasiri’sopinion as to the date on which Dilrukshi had been subjectedto sexual intercourse. The learned counsel submitted t hat thelearned High Court Judge’s failure to give his mind to such animportant and material issue that arose in this case is a gravenon direction amounting to a misdirection which would byitself, be sufficient to vitiate the conviction.
The accused-appellant had been indicted on the footingthat the offence of rape on Dilrukshi Saumytilaka wascommitted by the accused-appellant on 22 August 1998.Dilrukshi in her evidence testified that the accused-appellanthad sexual intercourse with her on 22 August 1998 and thatshe was a virgin until then. According to Rohana the alleged
Premadasa v. State(Kulatilaka. J.)
utterance by the accused-appellant which would amount to anadmission by the accused-appellant was made on the sameday.
Medical expert Dr. Hemamali Wimalasiri has testified toCourt what she had observed when she examined Dilrukshi^p24 August 1998. At that point of time she was aware of thehistory narrated to her by Dilrukshi, to the effect that she wasravised by the accused-appellant on 22 August 1998. Themedical expert had observed a tear of the hymen but she boldlyand categorically expressed the opinion that the tear of thehymen had taken place 8 days or more prior to her examiningthe prosecutrix.
In his dock statement the accused-appellant has admittedthat he had a love affair with Dilrukshi but asserted that he didnot ravish her and denied the charge.
As stated earlier the medical expert had expressed heropinion that the tear of the hymen she had observed when sheexamined Dilrukshi would have occurred 8 days or more priorto the date she examined her namely on 24 August 1998.Hence the probable date would be 16 August 1998 or a dateprior to that date. Neither the learned prosecuting StateCounsel nor the learned trial Judge had invited her to elucidateher opinion any further or elaborate the grounds upon whichthat opinion was based. In the case of Mentis us. The Queen!1’at 179 His Lordship Justice Gratiaen frowned upon thefailure by the prosecution to elucidate means by which themedical expert had come to a finding that the injuries were“sufficient in the ordinary course of nature to cause death”. HisLordship's observations are as follows:
“As far as we can judge, however, from his evidence onrecord he was not invited to elucidate his opinion anyfurther or to elaborate the grounds upon which thatopinion was based”.
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The crucial issue that arose for determination bythe learned tried Judge in the instant case was whether thisgirl Dilrukshi had been in fact subjected to sexual inter-courseon 22 August 1998 by the accused-appellant as allegedby the prosecutrix. Unfortunately the learned trial Judgehfib refrained from making any assertion in respect ofthis matter. This non direction on a vital question of facttantamounts to a grave error of law which in our view issufficient to vitiate the conviction. Hence, we hold that thisverdict should not be allowed to stand as it is unreasonablehaving regard to the medical evidence which creates a seriousdent in the version of the prosecutrix that she was ravisedby the accused-appellant on 22 August 1998. Hence, we setaside the conviction and the sentence and proceed to Scquitthe accused-appellant.
HECTOR YAP A, J.- I agree.