006-SLLR-SLLR-2009-V-1-SANA-vs-REPUBLIC-OF-SRI-LANKA.pdf
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SANA
vsREPUBLIC OF SRI LANKA
COURT OF APPEALSISIRA DE ABREW. JABEYRATNE. JCA 141/2001
HC ANURADHAPURA 196/99DECEMBER 17, 18, 2008
Sexual assault – Conviction – Is corroboration necessary? – Can evidenceof a victim be corroborated by a subsequent statement made by her?-Using a statement by a witness to discredit her evidence – Not producedat the trial – Permissibility.
The accused-appellant was convicted for committing the offence ofgrave sexual abuse on a girl – C, and was sentenced. It was contendedthat, the trial Judge erred by considering the statement made by theprosecution witness Iresha to the police as confirming and corroboratingthe story of the victim, and that the trial Judge erred by considering theconclusion of the medical officer as confirming and corroborating thestory of the victim.
Held:
(1) The corroborative facts and evidence must proceed from someoneother than the witness to be corroborated. This means that hisprevious statements, even when admissible cannot be used tocorroborate him, such as proof of a complaint in a sexual case or aprevious act of identification is not corroborative of the evidence of thewitness, even though by showing consistency, it can to some extentstrengthen his credibility.
Where an accused is charged with rape corroboration of the storyof the prosecutrix must come from some independent quarterand not from the prosecutrix herself. A complaint made by theprosecutrix to the police in which she implicated the accusedcannot be regarded as corroboration of her evidence.
Per Sisira De Abrew. J:
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“Evidence of a victim in a case of sexual assault cannot be corroboratedby a subsequent statement made by her. The learned trial Judge waswrong when he concluded that the evidence of the victim had been cor-roborated by her short history given to the doctor”.
(2) Witness Iresha’s statement was not produced in evidence, but thetrial Judge utilized Iresha’s statement to the Police to discredit herevidence given at the trial. The trial Judge cannot use a statementmade by a witness to the Police which is not produced in evidenceto discredit the witness. The procedure adopted by the trial Judgeto discredit Iresha is improper and not permitted by law.
APPEAL from a judgment of the High Court of Anuradhapura.
Case referred to:
Fernando vs. Republic of Sri Lanka – (1979) 2 NLR 313 at 397, 398
K vs. Athukorale – 50 NLR 256
Dr. Ranjith Fernando for the appellant-Dappula de Livera DSG for Attorney General
Cur.adv.vult.
February 02, 2009SISIRA DE ABREW, J.
The accused appellant, in this case, was convictedfor committing the offence of grave sexual abuse on a girlnamed Mallika Arachchige Harshani Chandrarathne and wassentenced to a term of ten years rigorous imprisonment [RI].In addition to the above sentence, the accused appellantwas ordered to pay a sum of Rs. 3500/- as compensation tothe victim carrying a default sentence of six months simpleimprisonment. This appeal is against the said conviction andthe sentence. Facts of this case may be briefly summarizedas follows:
Six year old Harshani was a pupil of the appellant’ssister who conducted scholarship classes for grade fivestudents. On 8.1.99 when Harshani and her three friendsIndika, Inoka and Gayani were in the class, the appellant’s
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sister left the class leaving the children under the care of theappellant. Whilst the appellant-conducting the class, he tookthe victim to a room, kept her on his lap, allowed his maleorgan to touch her vagina and moved her up and down.Victim says at one stage male organ of the appellant wentlittle inside her vagina. The appellant thereafter let her go tothe class. She complained to the mother about the incidentwhen she went home.
Learned counsel for the appellant urged two grounds asmilitating against the maintenance of the conviction. 1 shallnow deal with the first ground which is as follows: “Learnedtrial judge erred by considering the conclusion of themedical officer as confirming and corroborating the story ofthe victim.”
Learned Counsel contended that the conclusion reachedby the learned trial judge, at page 219 of the brief, that theshort history corroborated the evidence of the victim waswrong. The learned trial judge, at page 219 of the brief, cameto the conclusion that the evidence of the victim had beencorroborated by the short history given by the victim and theobservation and the conclusion reached by the doctor. I shallnow consider whether the evidence of a victim in a case ofsexual assault could be corroborated by the short historygiven by her. In answering this question, I must firstconsider the meaning of corroboration. His LordshipJustice Vithyalingam in Fernando vs. Republic of SriLankdl) at 397 and 398 remarked thus: “In our law ofevidence corroboration is a term which has a specialsignificance. In the conventional sense as used in our Courtsit means other independent evidence which confirms orsupports or strengthens the evidence which is required to becorroborated.”
“The corroborative facts and evidence must, however,proceed from someone other than the witness to becorroborated. This means that his previous statements, even
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when admissible, cannot be used to corroborate him, suchas proof of a complaint in a sexual case or a previous act ofidentification is not corroborative of the evidence of thewitness, even though by showing consistency it can to someextent strengthen his credibility.” Vide Law of Evidence byE.R.S.R Coomaraswamy Vol. 2 (book 2) page 627.
In King vs Athukorate2) Court of Criminal Appeal held:“Where an accused is charged with rape, corroborationof the story of the prosecutrix must come from someindependent quarter and not from the prosecutrix herself. Acomplaint made by the prosecutrix to the Police in which sheimplicated the accused cannot be regarded as corroborationof her evidence.”
Applying the principles laid down in the above legalliterature, I hold that evidence of a victim in a case of sexualassault cannot be corroborated by a subsequent statementmade by her. I therefore hold that the learned trial judge waswrong when he concluded that the evidence of the victim hadbeen corroborated by her short history given to the doctor.
Learned trial judge, at page 219, further concludedthat her evidence had been corroborated by the observationand the conclusion reached by the doctor. According to thedoctor there were no signs of sexual intercourse beingperformed on the girl. But the doctor says that sexual abuseof other forms could not be excluded. There were no injuriesin her genital area. Doctor further stated that there wereno anal tears. It appears from the medical evidence thatthe doctor did not come to any conclusion that the victimhad been subjected to sexual assault. Therefore in my viewconclusion reached by the learned trial judge that herevidence was corroborated by the observation and theconclusion of the doctor is wrong. I
I shall now consider the 2nd ground urged by the learnedcounsel for the accused appellant which is as follows: “ The
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learned trial judge erred by considering the statement madeby the prosecution witness Iresha to the Police as confirmingand corroborating the story of the victim.” I shall nowconsider this ground. The stoiy of the victim is that whenIresha and her two sisters were in the class, the accusedappellant took her to the class and committed the sexualassault. Iresha, in her evidence, says that the accusedappellant did not take the victim to the room. LearnedProsecuting State Counsel, on this answer, treated her asa hostile witness to the prosecution. Learned ProsecutingState Counsel did not mark her statement made to the policewhen she gave evidence. Learned DSG too admitted that herstatement was not produced in evidence. But the learnedtrial judge utilized Iresha’s statement made to the Policeto discredit her evidence given at the trial. Learned DSGcontended that the learned trial judge was entitled touse her statement made to the police to discredit herevidence. It has to be stressed here that her statement wasnot produced in evidence. If the statement was not producedin evidence, how did the learned trial judge use thisstatement to discredit her evidence? If the evidenceof Iresha given in court is believed, it creates a reasonabledoubt in the evidence of the victim and then theaccused appellant would be entitled to be acquittedof the charge. In my view a judge cannot use astatement made by a witness to the police which is notproduced in evidence to discredit the witness. In theinstant case the procedure adopted by the learned trialjudge to discredit Iresha is improper and is not permitted bylaw. The above procedure adopted by the learned trial judgehas caused grave prejudice to the accused. It was the dutyof the learned trial judge to consider whether the evidenceof Iresha creates a reasonable doubt in the evidence of thevictim. For these reasons, I hold that the rejection of Iresha’sevidence is wrong. I have earlier pointed out that the learnedtrial judge came to the wrong conclusion when he decidedthat victim’s evidence had been corroborated by medical
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evidence. For these reasons, the conviction of the accusedappellant cannot be permitted to stand. I therefore set asidethe conviction and the sentence of the appellant.
The next question that should be considered is whetherI should acquit the accused or order a retrial. As I pointedearlier the rejection of Iresha’s evidence is wrong. WhetherIresha’s evidence could be rejected on other grounds is amatter for the trial judge. Further the trial judge mustconsider whether he could accept the * evidence of thevictim without any corroboration. When I consider allthese matters, I hold the view that ordering a retrial isthe best step. For these reasons I order that the accusedappellant be tried afresh on the same indictment.
ABEYRATHNE, J. – I agree.
Trial de novo ordered..