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| Thursday, 17 July 2003 |
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The Court of Appeal has set aside the conviction and sentence imposed on an accused in a rape case after concluding that a reasonable doubt existed as to the guilt of the accused-appellant. The Bench comprised Justices Raja Fernando and G. W. Edirisuriya. According to the Judgement, by Justice Fernando the trial judge in rejecting the evidence of the defence had come to the conclusion that the investigating officer and the defence witnesses have all got together and lied to save the accused-appellant. The judgement also said: The accused-appellant was convicted of rape under the statute prior to the amendment of 1995 and was sentenced to 10 years' R.I. by the High Court Judge sitting without a jury. It is curious that the trial judge has after sentencing the accused-appellant to 10 years' R.I. released the appellant on bail. The evidence with regard to the alleged incident comes from the prosecutrix Sanjeewani. According to her she was 15 years at the time and was a school girl. She has not gone to school that day as she had an injury on her knee. Her mother had left for work about 7 a.m. leaving her with the younger sister. Medical evidence speaks of several abrasions and two injuries on the vagina. The accused-appellant has given evidence on oath and denied the incident. His evidence is that he saw the prosecutrix in intimate contact with one Nandasena also a co-villager on the previous day, 5.9.95 when the accused-appellant and Abeywickrema were going to his grand mother's place. The defence called one Sarath Kumara another villager who gave evidence to say that he saw the prosecutrix coming out of the thicket when he was returning home for lunch and Nandasena who was with the prosecutrix running away. According to Sanath Kumara; Abeywickrema too had seen this and they have advised the prosecutrix not to behave in that manner. Sarath Kumara had seen this incident on 6.9.95 at about 1 p.m. The investigating officer S.I Ishak had visited the village the same night, i.e. 6.9.95 and questioned Sarath Kumara and Abeywickrema as to the whereabouts of the accused-appellant and the witnesses have promptly made statements to S.I. Ishak of what they had seen. It is difficult to conceive that the two witnesses were waiting for the police officers to arrive with a prepared story in defence of the accused-appellant. In the course of the judgement the learned trial judge was observed that S.I. Ishak should have been called by the defence rather than by the prosecution. The learned trial judge in his judgement appears to have disbelieved the defence witnesses because they contradicted themselves on the date of the incident. The accused-appellant in giving evidence stated that he saw the prosecutrix with Nandasena on 5.9.95 (the day before the incident of alleged rape). In the statement made to the police he had stated that he saw them together on 3.9.95 (three days prior to the incident). According to defence witness Sarath Kumara he had seen the prosecutrix with Nandasena on 6.9.95 and advised her. On this contradiction alone it is not reasonable to conclude that the defence witnesses are lying. It could well be that the accused-appellant saw them together on one day and Sarath Kumara saw them another day. The learned trial judge has come to the conclusion that all the defence witnesses and prosecution witness S. I. Ishak have got together to fabricate a defence on behalf of the accused-appellant without any material to come to such a finding. In all the circumstances of this case we are of the view that a reasonable doubt arises as to the guilt of the accused-appellant. Dr. Ranjit Fernando with Sandamali Munasinghe and Ranmalee Jayawardene appeared for the Accused-appellant. SSC Sarath Jayamanne appeared for the Attorney General. |
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