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| Tuesday, 30 September 2003 |
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The Court of Appeal has set aside the conviction and a 19-year prison term passed on a suspect in case of rape, robbery holding that there were infirmities in the prosecution case. The Bench comprised Justices Chandradasa Nayayakkara and Jagath Balapatabendi. Accused Appellant Hewage Don Dinesh Chaminda was charged on or about 8th August, 1994 for committing the offence of House Trespass and in the course of the same transaction did rape one Nalika Damayanthi Warnakulasuriya and further committed the offence of Robbery of a gold chain belonging to Damayanthi. The Accused had been tried before the Negombo High Court and found guilty of charges on all counts and sentenced to a total of 19 years imprisonment. The Prosecution led evidence which unravelled the story. The victim of Rape Nalika Damayanthi had visited her Brother-in-Law's house at Kadawatha with her child 1 week prior to the incident as her husband was serving in the Army. On the day of the incident whilst sleeping she heard voices outside the house requiring them to open door. When they so did two men had entered and she says that she was Raped by both and certain items of jewellery stolen. They had left the premises thereafter threatening the occupants not to inform the Police. In her evidence she says that she identified one of the persons as Wasantha who used to visit their house very often but that the other person she was not able to identify or recognize and he had never been seen before. The Police had visited the scene, recorded statements and had arrested Wasantha initially and thereafter the 2nd person Dinesh Chaminda. The jewellery stolen had also been recovered from a shop where it had been melted down and transformed into fresh items of jewellery. After trial the 1st Accused Wasantha had also been found guilty sentenced to 19 years imprisonment. However he had not preferred an appeal against his conviction and sentence. However, the other Accused Dinesh Chaminda had appealed against the conviction and sentence of 9 years R/I and argueing his case before the Court of Appeal, His Counsel Dr. Ranjith Fernando had submitted that the Trial Judge had erred in law by attaching a probative value to a "dock identification" of this accused Appellant 4 years after the incident for the first time which would have no value whatsoever as the Accused was not known to the victim prior to the incident and no identification parade had been held although the Accused had been arrested within 48 hours of the incident. Case Law Local and Foreign had been cited in support of this proposition. Senior State Counsel who appeared for the Attorney General conceded that there were serious infirmity on the question of identification and that there is merit in the argument put forward by Counsel on behalf of the Accused Appellant. After consideration of submissions made Justice Chandradasa Nanayakkara (with Justice Jagath Balapatabendy agreeing) delivered the order of the Court which stated inter alia that in view of infirmities and weaknesses in the prosecution case as submitted the conviction is quashed and sentence set-aside. The accused was acquitted. Dr. Ranjit Fernando appeared on behalf of the Accused Appellant while Senior State Counsel Buwaneka Aluvihara represented the state. |
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