Penal Code – Sections 364(2)(e) and 365(B)(2)(a) – Rape and Grave Sexual Abuse – Conviction under a different section from the indictment – Absence of fair notice – Whether prejudice caused – Requirements of penetration and proof – Revision of conviction – Criminal Procedure Code compliance – Miscarriage of justice.

 Court of Appeal of the Democratic Socialist Republic of Sri Lanka

CA/HCC/52/2024

High Court Puttalam Case No: HC/30/2022

Before: B. Sasi Mahendran, J., and Amal Ranaraja, J.

Counsel: Amila Palliyage with Sandeepani Wijesooriya, Savini Udugampola, Lakitha Wakishtaarachchi, Sampath Perera and Subaj De Silva for the Accused-Appellant.

Hiranjan Peiris, ASG, for the Respondent.

Argued on: 25.08.2025

Decided on: 08.10.2025

Madduralalage Nimal Ananda alias Sudha Mama v. Attorney General

Penal Code – Sections 364(2)(e) and 365(B)(2)(a) – Rape and Grave Sexual Abuse – Conviction under a different section from the indictment – Absence of fair notice – Whether prejudice caused – Requirements of penetration and proof – Revision of conviction – Criminal Procedure Code compliance – Miscarriage of justice.

 

Held:

The accused was indicted for rape under Section 364(2)(e) of the Penal Code. The trial judge, without altering the indictment, convicted him instead of grave sexual abuse under Section 365(B)(2)(a). The Court of Appeal held that the substitution of a different offence without notifying the accused deprived him of the opportunity to defend himself on the alternative charge. The elements of rape and grave sexual abuse are distinct—rape requires proof of penetration, whereas grave sexual abuse does not. The High Court had failed to comply with Sections 167–177 of the Criminal Procedure Code, resulting in a miscarriage of justice.

 

The Court further observed that where the evidence fails to establish penetration, a conviction for rape cannot be sustained, and the court cannot suo motu alter the offence at the stage of judgment. The inconsistency and unreliability of the prosecutrix’s evidence made the conviction unsafe. The Court accordingly set aside both conviction and sentence.

 

Ratio Decidendi:

A conviction for an offence not included in the indictment violates the accused’s right to a fair trial. An alteration of the charge must follow the procedure prescribed under the Criminal Procedure Code. Absence of penetration excludes a charge of rape but does not automatically authorize conviction for grave sexual abuse unless duly amended and defended.

 

Authorities Cited:

 

Premasiri v. Attorney General [2006] 3 SLR

 

Rustom v. Hapangama [1978–79–80] 1 SLR 352

 

Held further:

When the accused is acquitted of rape, the court cannot convict for grave sexual abuse unless such charge was lawfully substituted. Failure to follow due procedure amounts to a denial of justice.

 

Appeal Allowed. Conviction and Sentence Set Aside.

 

 

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