daughter. He had threatened to shoot her or rape her. When shewent to her uncle’s place to sleep her mother used to chaperonher. On 23.2.95 she left home alone around 7 p.m. for hermother was sick. Whilst she was on her way to her uncle’s placethe accused-appellant had come with three others on twobicycles, held her and carried her by force to a lonely place.Thereafter two persons had raped her, one after the other whilston Igoth occasions the accused-appellant Gamini Rajapaksewas bolding her. They left her there naked and unconscious.When sfie gained consciousness it was dawn and she was feelinglifeless. The abductors and rapists had inserted two sticks intoher private parts. These sticks were marked PI and P2. Theabductors had gagged her mouth with her own brassiere. Itwas a dastardly act, a gruesome crime. Early morningChandrawathie had gone in search of her sister Lasadawathieaccompanied by the police. She found her sister Lasadawathielying naked at a lonely spot. Her mouth was gagged with abrassiere. She was very weak and on being questioned byChandrawathie she had said “it was Gamini Rajapakse who ismarried to your daughter who is responsible.”
The medical evidence was adduced by the medical expertDr. U.A.K. Tennakoon who had examined the prosecutrix on24.2.95 at the Anuradhapura hospital. She had beentransferred to Anuradhapura from Medawachiya on the sameday. He had observed two injuries on the prosecutrix, namely,
swollen buccal mucosa of upper pallet.
1/2” long linear abrasion on the buttocks area, further heobserved “two plant sticks (1/4” in diameter, 4 1/2” long, ando.l” in diameter, 7 1/2” long) found in the vagina in situ.” Thepatient had given a history of rape. His report has beenproduced marked P6. Further in her short histoiy to the Doctorshe had implicated the accused-appellant. Thus the testimonyof the prosecutrix has been amply corroborated by the medicalevidence to the effect that she had been ravished.
Sri Lanka^’2 Sri L.R.
' J„.' -• >-»■-■»
The Inspector of Police Keerthi Bandara testified to theinvestigations carried out by him at the crime scene. He hadpersonally accompanied the complainant Chandrawathie insearch of the prosecutrix and found her lying naked at a lonelyspot on Maligawa Road 3 miles away from Lindawewa junction.He found her mouth gagged with a brassiere. This brassierehad been produced marked PI. After despatching theprosecutrix to the hospital he went in search of the accused-appellant to his house. He found that the accused-appellanthad run away, but he was able to arrest him at Medirigiriya on28.2.95.
We now consider the arguments advanced by the learnedcounsel for the accused-appellant in support of his contentions.
According to Section 241 (3) of the Code of CriminalProcedure Act, No. 15 of 1979 after the conclusion of the trial ofan accused person in his absence if he appears before Courtand satisfies the Court that his absence at the trial was bonafide the Court shall set aside the conviction and sentence andorder that the accused be tried de novo.
The learned counsel at the commencement of the argumentmade submissions to the effect that when the accused-appellantwas produced before the High Court on 2.9.99 by the police thelearned High Court Judge had merely read over to the accused-appellant the sentence imposed on him by the trial Judge inhis judgment dated 22.7.98 albeit, the learned Judge failed tocomply with the provisions of Section 241 (3) of the Act.However, when he was confronted with the journal entry of 2.9.99he chose to abandon that contention. The journal entry indicatesthat the accused-appellant did not give any reasons for hisabsence from Court and it was only then that the learned HighCourt Judge had proceeded to enforce the sentence imposedon him by the learned trial Judge on 22.7.98 to be operativefrom 2.9.99. Nevertheless the learned counsel persisted withhis contention that the High Court did not have sufficientevidence of absconding for him to justify the order he made on
Rajapakse u- ^*e State
gcuintiirtka, J.)
20.5.1998 in terms of Section 241 (1) of the Act to commenceand proceed to trial in the absence of the accused. The learnedcounsel seems to have conveniently forgotten the fact that whenthe accused-appellant was arrested by the army and producedbefore Court by the police after a lapse of 13 months from thedate of the pronouncement of the judgment and sentence bythe trial Judge he did not give any reasons for his absence atthe trial. This factor by itself would demolish the contentionthatlthere was no evidence of absconding before Cotfrt whenthe Judge made an order in terms of Section 241 (1) of theCode of Criminal Procedure Act for a trial in absentia.
According to the proceedings in the Magistrate’s Court theaccused-appellant had been enlarged on bail on 13.3.96 aftersigning a bail bond and a recognizance whereby he boundhimself to continue to appear in Court. In that bail bond hehad given his name and address. The journal entry of 9.3.98indicates that the Court had noticed the accused-appellant toappear on 25.3.98 to serve his indictment. According to thejournal entry of 25.3.98 when the case was called on that dateto serve the indictment the accused was absent. It was reportedto Court that the accused had been missing for a period of abouttwo years. Thus the accused-appellant had flouted and violatedthe conditions and assurances in the bail bond solemnly signedby him.
The surety had been present. He had been released onpersonal bail with the assurance given by him that he wouldproduce the accused-appellant in Court. It is on record that on18.5.98 when the case was called Attomey-at-Law Hatangalahad made submissions on behalf of the surety to the effect thatthe accused-appellant whilst he was on bail in connection withthe instant case he had robbed a gun and cartridges from aGrama Arakshaka and thereafter had proceeded to murder hisown wife. Subsequently he was involved in a robbery as well.Thereafter he had disappeared from the village. Apart from theseconcrete facts which are on record, the learned High Court Judgehad before him the evidence of the Grama Sevaka of the area
Sri Lanka 33r• v(' i J20011 2 Sri L.R.
where the accused had been living. He had testified to the effectthat he had never seen the accused-appellant in his area. Thefather of the accused Suddahamy testified that he did not seehis son since April 1996 and he did not know his whereabouts.Thus we are of the view that there was concrete and cogentevidence before the learned trial Judge to justify the order hemade on 20.5.1998 to commence the trial and proceed in theabsence of the accused-appellant. In this regard vide thejudgment of Wijeyaratne, J in Thilakaratne vs. The Attofyiey-GeneraV11.a
Another point urged by the learned counsel for the accused-appellant was that the judgment of the learned trial Judge dated22.7.98 was not a proper judgment in terms of Section 283 ofthe Code of Criminal Procedure Act. Our Courts have stressednow and then that the essence of a judgment consist in thereasons for conviction or acquittal of an accused person. VideThiagarafah vs. Annatkoddai Policel2>, Haramants Appuhamyus. Inspector of Police Bandaragama131. The learned trial Judgehas given his mind to the vivid description of events testified toby the prosecutrix, corroborative evidence adduced by anindependent source namely Chandrawathie relating to theutterances made by the prosecutrix to Chandrawathie soon afterChandrawathie and the police found her, to the effect that itwas Chandrawathie’s son-in-law Gamini Rajapakse who wasresponsible for the gruesome act to which she was subjected toand the fact that the prosecutrix was lying naked with a gaggedmouth. The learned trial Judge has considered the relevance ofmedical evidence as well before he arrived at the conclusionthat the accused-appellant was guilty on both counts in theindictment. The judgment in this case is a well reasoned outjudgment. Hence we hold that the submissions made in thisregard lacks substance and merit.
The learned Senior State Counsel took up a preliminaryobjection that the appeal was out of time. She referred us toSection 203 of the Code of Criminal Procedure Act which readas follows:
Rajapakse v. The State
(Kulattlaka, J.)
“When the cases for the prosecution and defence areconcluded the Judge shall forthwith or within ten daysof the conclusion of the trial record a verdict of acquittalor conviction giving his reasons therefor and if the verdictis one of conviction pass sentence on the accusedaccording to law."
She submitted that in all cases irrespective of whether theaccused was present or tried in absentia the trial Judge hasto comply with Section 203 of the Code of Criminal ProcedureAct and in terms of Section 331 of the Code the petition ofappeal has to be lodged with the Registrar of the High Courtwithin 14 days from the date when the conviction, sentence ororder sought to be appealed against was pronounced. Thisposition has been looked into by Sri Skanda Rajah, J inHaramanis Appuhamy vs. Inspector of Police Bafcdaragama(Supra) and Pathirana, J in Solicitor-General vs. NadarajahMuthurajah(4> where it was held that the period of time withinwhich an appeal should be preferred must be calculated fromthe date on which the reasons for the decision are given.
In the instant case the reasons for the convictrfm and thesentence were given on 22.7.98. The petition ofifcippeal hadbeen lodged in the High Court on 17.9.1999. V <srefore thesubmission made by the learned Senior State Counsel to theeffect that the appeal is out of time should succeed.
The learned counsel for the accused-appellant alsosubmitted that if this Court were to hold that the petition ofappeal is out time it would not preclude him from invitingthis Court to exercise the revisionaiy powers in terms ofSection 364 of the Code of Criminal Procedure Act. We agreethat the powers of revision of the Court of Appeal are wideenough to embrace a case where an appeal lay was nottaken. However an application in revision should not beentertained save in exceptional circumstances. Vide thejudgment of Dias, SPJ in Attorney-General vs. Podisinghoe151.When considering this issue this Court must necessarily have
Sri Lanka Law Reports
[20011 2 Sri L.R.
regard to the contumacious conduct of the accused in jumpingbail and thereafter conducted himself in such a manner tocircumvent and subvert the process of the law and judicialinstitutions. In addition if this Court were to act in revision theparty must come before Court without unreasonable delay. Inthe instant case there is a delay of 13 months. In this regardvide Justice Ismail’s judgment in Camlllus Ignatious vs. OIC ofUhana Police Station161 (Application in revision) where HisLordship was of the view that a mere delay of 4 months in filingrevision application was fatal to the prosecution of the revisionapplication before the Court of Appeal. Accused’s contumaciousconduct and unreasonable delay would necessarily precludehim from inviting this Court to act in revision in terms of Section364 of the Code of Criminal Procedure Act.
In Sudarman de Silva & Another vs. Attorney General(7)at 14 and 15 Sharvananda, J observed that the contumaciousconduct on the part of an applicant is a relevant considerationin an application in revision. In this regard vide the judgment ofF.N.D. Jayasuriya, J in Opatha Mudiyanselage Nimal Pereravs. Attorney-General81. In that case too the trial against theaccused w^j held in absentia and he had filed an applicationin revision *hj)/4 years since the pronouncement of the judgmentand the senuhce. His Lordship remarked:
“These matters must be considered in limine before theCourt decides to hear the accused-petitioner on the meritsof his application. Before he could pass the gateway to reliefhis aforesaid contumacious conduct and his unreasonableand undue delay in filing the application must be consideredand determination made upon those matters before he isheard on the merits of the application.”
In these circumstances we are not disposed to exercise ourrevisionary powers of this Court and interfere with the judgmentof the learned High Court Judge made on 22.7.98. Besides, onthe facts of this case there is no merit.
Rajapakse v. The State
(Kulattlaka, J.)
We observe that the learned Jsentences to run consecutively, in the event the accused-appellant failed to comply with die terms in respect of the fineand compensation imposed on him on counts one and tworespectively. We order that this portion of his sentence to bestruck off since there is no legal basis to make such an order.Subject to this variation, we proceed to dismiss the appeal andalso the application for revision made to this Court in terms ofSection 364 of the Code of Criminal Procedure Act.
HECTOR YAPA, J. (P/CA) – I agree.Appeal dismissed.
Application in revision refused.