007-NLR-NLR-V-78-W.-H.-PIERIS-and-three-others-vs.-THE-ATTORNEY-GENERAL.pdf
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SIRIMANE, J. —fieri* v. The Attorney-General
Present : Sirimane, J., Wijesundera, J. and Ratwatte, J.
W. H. PIERIS and three others us. THE ATTORNEY-GENERAL
S. C. 6-9/75—H. C. Gampaha 96/74
Evidence—Identity—Charge of Rape.
Where the evidence of identity rested on the sole uncorroboratedtestimony of the prosecutrix and the circumstances under whichthe “ identification ” took place left no room for the person seekingto identify to choose between a right identification and a wrongidentification—
Held: It is unsafe to allow the conviction to stand, in thecircumstances of the case.
Appeal against conviction at a trial before the High Court,Gampaha.
A. N. Ratnayake, for the accused-appellants.
D. S. Wijesinghe, Senior State Counsel for Attorney-general.21st May, 1975. Sirimane, J.
The four appellants in this case were charged with the fouracts of rape committed on one Chandrawathie. The incidentbriefly was that they had broken into her house at a time whenher husband was not at home dragged her out into a thicketand each of the four accused committed the offences on her. Theonly question that arises for decision in this case is the questionof identity of the four accused. As far as the 2nd accused isconcerned Chandrawathie knew him both by sight and by nameand there is evidence that in her first statement to the Police andalso earlier to the Grama Sevaka she had mentioned his nameas Nandasena. In respect of the other three persons she had given
Mahalingam v. The Republic of Sri Lanka
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the descriptions to the Grama Sevaka who was the first personto meet her after this incident. The Grama Sevaka wasaccompanied by certain members of the Vigilance Committee andChandrawathie says that those members gave the names' of theother three accused when she described them. She was thereaftertaken to hospital and whilst in hospital on the following afternoonall four of the accused including the person whom she knew andwhom she had named Nandasena were produced before her inthe presence of the Doctor and she identified all four as the fourpersons who committed the offences on her.
The learned Counsel for the appellants urges strongly that thisidentification in respect of the 1st, 3rd and 4th accused isinsufficient and suspect and it could well be that since they wereproduced along with the 2nd accused before Chandrawathie sheidentified all as the offenders. There appears to be much substancein this complaint as the circumstances under which this identifi-cation took place left no room for Chandrawathie to choosebetween a right identification and a wrong identification. Thefour persons alleged to have committed the offences wereproduced before her and she had only to say “ yes ” to completethe identification. In these circumstances and especially as theevidence of identity rested on the sole uncorroborated testimonyof the prosecutrix we do not think it safe in the circumstancesof this particular case to allow the conviction to stand in respectof the 1st, 3rd and 4th accused appellants. We therefore quashthe convictions of the 1st, 3rd and 4th accused appellants andacquit them and affirm the conviction and sentence of the2nd accused appellant and dismiss his appeal.
Wijestondera, J.—I agree.
Ratwatte, J.—I agree.
1st, 3rd and 4th accused-appellants acquitted.