sexual offence - Reliability of witness- conviction base on unreliable evidence
1. “No hard and fast rule can be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case.
Where a witness makes two inconsistent statements in his evidence with regard to a material fact and circumstance, the testimony of such a witness becomes unreliable and unworthy of credence.”
2. The evidence of a single witness can be acted upon provided the sole witness passes the test of reliability
JUDGMENT
ON : 18.07.2022
**************
K. PRIYANTHA FERNANDO, J.(P/CA)
1. The
accused appellant (hereinafter referred to as the appellant) was indicted in
the High Court of Chilaw, on three counts of rape punishable in terms of
section 364 (2) of the Penal Code. After trial, the learned High Court Judge
convicted the appellant on count no. 1 and acquitted him on counts 2 and 3, and
sentenced the appellant to 15 years rigorous imprisonment. Further, the
appellant was ordered to pay a fine of Rupees Twenty Five Thousand, in default
of such fine 6 months imprisonment. In addition, the appellant was ordered to
pay Rupees One Hundred and Fifty Thousand as compensation to the victim, in
default of payment of such compensation 12 months imprisonment was ordered.
2. Being
aggrieved by the above conviction and sentence, the appellant preferred the
instant appeal on the following grounds.
I. Conviction is unsafe in view of the fact that
the complaint was not filed by the prosecutrix or her mother but by a 3rd
party namely
Gunesekara who had ulterior motive.
II. Prosecution version does not favour the test of
probability.
III. Prosecution has failed to establish the date of
offence.
IV. LTJ has failed to consider the facts available
in favour of the appellant.
3. As
per the evidence of the prosecutrix Keshila Madushani (PW1), she had been
living with her mother Kusumawathi. Initially, her mother has been living with
one Gunasekara as husband and wife. Due to the differences that Kusumawathi has
had with Gunasekara, Kusumawathi has left Gunasekara for Sunil and had started
living together with Sunil who is the accused in this case. According to PW1,
it was during that period when her mother was living with the appellant, the
appellant had raped her. According to PW1, the appellant has raped her only
once.
4. Thereafter,
her mother Kusumawathi has left Sunil the appellant, and has again started
living with the said Gunasekara. According to PW1, Gunasekara has taken her to
the police station and had made a complaint against the appellant stating that
the appellant has raped her. At the time of the trial in the High Court, Kusumawathi
has once again started living with the appellant. It was the contention of the
learned Counsel for the appellant that PW1 is not a credible witness to be
acted upon. In that, the Counsel submitted that although the PW1 has told the
Medical Officer who examined the PW1 that the appellant has had sexual
intercourse with her on so many occasions, she has clearly stated in Court that
it happened only once. The learned Deputy Solicitor General appearing for the
respondent conceded that there are inconsistencies between PW1’s evidence and
what she had told the Medical Officer with regard to the number of occasions
that she was raped.
5. The
learned Counsel for the appellant submitted that the evidence has revealed that
the said Gunasekara has instigated the PW1 to make a false complaint against
the appellant.
6. In
her evidence, the PW1 has clearly stated that she did not make the complaint
against the appellant but it was Gunasekara who did so.
7. However,
according to the evidence of the police officer IP Ravindra Abeyrathne (PW5),
the first complaint was made by the child PW1 who was thirteen years of age at
the time of the incident. The child came to the police station with her mother Kusumawathi
and her paramour Gunasekara. PW1 who was twenty three years of age when she
testified in Court, clearly stated that she did not make a complaint and that
the complaint was made by her mother’s paramour Gunasekara. Although, according
to the evidence of the PW5 the child was taken to the police station by the
mother and Gunasekara, there is no evidence to the effect that their statements
were recorded by the police, nor were they called as witnesses by the
prosecution. However, Kusumawathi was called as a defence witness and the
learned trial Judge has considered her to be a biased witness towards the
defence as she was once again living with the appellant at the time she gave
evidence in Court. Her evidence was that the appellant never raped her
daughter.
8. The
Medical Officer who examined the PW1 has observed that PW1 has had multiple
vaginal penetrations. PW1 has been engaging in sexual intercourse for a period
of time. However, it is also pertinent to note that PW1 as she testified in
Court, has had continuous sexual intercourse with one Wasantha. She has also
disclosed this information to the police. Thus, the fact that the Medical
Officer has observed that PW1 has had continuous sexual intercourse cannot be
taken as evidence totally against the appellant, as admitted by PW1 that she
has continued to have sexual intercourse with the said Wasantha as well.
9. In
case of K. Padmatillake alias Sergeant Elpitiya v The Director General,
Commission to Investigate Allegations of Bribery or Corruption (SC appeal no 99
of 2007 decided on 37 2009), Supreme Court referring to Sir John Woodroffe and
Amir Ali , Law of Evidence-18th edition observed,
“No hard and fast rule can be laid down about
appreciation of evidence. It is after all a question of fact and each case has
to be decided on the facts as they stand in that particular case.
Where a witness makes
two inconsistent statements in his evidence with regard to a material fact and
circumstance, the testimony of such a witness becomes unreliable and unworthy
of credence.”
10. It
is settled law that the evidence of a single witness can be acted upon provided
the sole witness passes the test of reliability. In most cases of sexual
offences, the only available eyewitness is the victim as most sexual
offences are not committed in public. One cannot expect to corroborate victim’s
evidence by the evidence of eyewitnesses, apart from other corroborative
evidence like medical evidence. However, to act upon the sole eyewitness,
Court must be satisfied that her evidence is cogent and credible. In the
instant case, as it was mentioned before, the PW1’s clear evidence in Court was
that the appellant had sexual intercourse with her only once. However, she has
told the Medical Officer that the PW1 has had sexual intercourse with her on
several occasions. Therefore, that affects the credibility of this witness in
her evidence against the appellant. Further, as admittedly, she has had
intercourse with one Wasantha on several occasions during this period, the
Medical Officer’s observations cannot be taken as corroborative evidence
against the appellant.
11. The
evidence of the PW1 in Court was that she did not make a complaint against the
appellant and that it was Gunasekara who was her mother’s paramour who made the
complaint. It is evident that PW1 who was thirteen years of age was taken to
the police station by her mother and mother’s paramour Gunasekara. It is also
evident that PW1’s mother Kusumawathi who was initially living with the said Gunasekara
has left him for the appellant. Then again after some time, she has left the
appellant for Gunasekara, it was at that point in time Gunasekara has taken the
PW1 to the police station to make the complaint against the appellant. In the
circumstances, when considering the inconsistencies in the evidence of the PW1
with regard to the sexual intercourse, there is a doubt whether she was
actually raped by the appellant or whether she was instigated to make a false
complaint against the appellant due to the issues Gunasekara had with Sunil for
Kusumawathi leaving him for the appellant and coming back to Gunasekara after
some time. The learned trial Judge acting upon the evidence of the PW1 and
accepting her version that she was only raped once, found the appellant guilty
on count no.1 and acquitted on counts 2 and 3. The learned trial Judge has
failed to consider the incredibility on the part of the PW1’s evidence when she
said in Court that she was raped only once when in fact she had told the
Medical Officer and the police that she was raped on several occasions leading
the prosecution to have three counts in the indictment.
12. In
the above premise, I hold that it is unsafe to convict the appellant on the
inconsistent and incredible evidence of the PW1. Therefore, as the prosecution
has failed to prove the charge (count no.1) beyond a reasonable doubt, I set
aside the conviction and the sentence imposed on the appellant by the High
Court and acquit the appellant.
Appeal allowed
PRESIDENT OF THE COURT OF APPEAL
WICKUM A.
KALUARACHCHI, J.
I agree.
JUDGE OF THE COURT OF APPEAL
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an Appeal under Section 331 of the Code of Criminal Procedure Act No. 15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
Democratic Socialist Republic of Sri Lanka Court of Appeal Case No. | |
CA/HCC/0224/2019 | Complainant |
High Court of Chilaw Case No. HC/65/2016 | V. |
| Madawala Liyanage Sunil Accused |
| AND NOW BETWEEN |
| Madawala Liyanage Sunil |
| |
Accused–Appellant
V.
Hon. Attorney General,
Attorney General’s Department, Colombo 12.
Complainant–Respondent
BEFORE | : | K. PRIYANTHA FERNANDO, J.(P/CA) WICKUM A. KALUARACHCHI, J. |
| | |
COUNSEL | : | K. Kugaraja for the Accused – Appellant. Janaka Bandara, Deputy Solicitor General for the Respondent. |
ARGUED ON | : | 25.05.2022 |
WRITTEN SUBMISSIONS
FILED ON : 01.06.2020 by the Accused –
Appellant.
02.07.2020 by the Respondent.
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