P. Kumararatnam, J.

The above-named Appellant was indicted by the Attorney General under Section 365 B (2) (b) of the Penal Code for committing two counts of the offence of Grave Sexual Abuse on Konara Mudiyanselage Dakshika Dewmini Nandasena between the period of 01.01.2017 to 17.10.2017.

The trial commenced on 02/06/2022. After leading all necessary witnesses, the prosecution closed the case. The Learned High Court Judge had called for the defence and the Appellant had made a dock statement and closed his case.

The Learned High Court Judge after considering the evidence presented by both parties before the High Court Judge, convicted the Appellant as charged and sentenced the Appellant as follows:

                  * 1st Count – 14 years rigorous imprisonment with a fine of Rs.10,000/. In default 06 months simple imprisonment.

                  * 2nd Count – 14 years rigorous imprisonment with a fine of Rs.10,000/. In default 06 months simple imprisonment.

Additionally, the Appellant was ordered to pay a compensation of Rs. 200,000/- with a default sentence of 01-year simple imprisonment.

The court further ordered the sentence imposed on 1st and 2nd counts to run concurrently.

Being aggrieved by the aforesaid conviction and the sentence, the Appellant preferred an appeal to this Court.

The Learned Counsel for the Appellant informed this court that the Appellant has given his consent to argue this matter in his absence. At the hearing, the Appellant was connected via the Zoom platform from prison.

The Facts of this case albeit briefly are as follows.

According to PW1 - the victim of this case, she had been about 07 years old when she faced this bitter ordeal. When she gave evidence, she was 12 years old. During the time period relevant to this case, PW1 was studying in grade two.

The Appellant was the neighbour of the victim and a relation to her family. As such she used to call the Appellant “Sudu Bappa”. She used to play with the Appellant’s daughter after school. During the time period relevant to this case, when the victim went to play at the Appellant’s house, the Appellant had performed intercrural sex on the victim on two consecutive days. On the third day the victim had refused to go to the Appellant’s house and had divulged the incident to her mother who is listed as PW2 in the indictment.

When PW2, Indra Kanthi inquired about this from the Appellant the Appellant had denied the allegation. Thereafter, the mother of the Appellant had come to the victim’s house and had a fight with PW2. A police complaint was lodged immediately in the Nawagaththegama Police Station.

The Appellant in his dock statement denied the incident.

The following Grounds of Appeal are raised on behalf of the Appellant:

                  1. The prosecution has failed to satisfy the court the test of consistency, spontaneity and probability.

                  2. The Learned High Court Judge has failed to consider that PW1 was not a credible witness.

3. Both counts included in the indictment are erroneous and therefore, the indictment is bad in law.

                  4. The prosecution has failed to prove the victim’s name and the time period included in the indictment.

                  5. The Appellant has been denied a fair trial.

In a case of this nature, the testimonial trustworthiness and credibility of PW1, mainly the probability should be assessed with utmost care and caution by the trial judge. The Learned Trial Judge has to satisfy and accept the evidence of a child witness after assessing his competence and credibility as a witness.

In this case, there was no evidence that revealed a motive to implicate the Appellant upon the instructions of PW2 or anyone else. No evidence was led to establish that there was a dispute had existed between the Appellant and the victim’s family. It was not disputed that the victim used to go to the Appellant’s house to play with his daughter Prarthana.

As the Appellant is a close relation of the victim and the family trust was placed on him, she was allowed to go to the Appellant’s house. No single contradictions or omissions were highlighted in the victim’s evidence.

At the very outset of the argument, the learned Counsel for the Appellant informed this Court that he is only contesting the sentence imposed by the High Court Judge.

The Learned Additional Solicitor General in keeping with the highest traditions of the Attorney General’s Department, informed that she is not standing in the way for any adjustment in the sentence.

Section 365B (1) of the Penal Code reads as follows:

                  (1) Grave sexual abuse is committed any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the human body or any Instrument on any orifice or part of the body of any other person, being an act, which does not amount to rape under section 363, in circumstances falling under any of the following descriptions, that is to say-

                  (a) without the consent of the other person;

                  (aa) with or without the consent of the other person when the other person is under sixteen years of age;"

                  (b) with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained, by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt;

                  (c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol of drugs.

Explanation: "injuries" includes psychological or mental trauma.

The Counsel’s argument was that the victim has suffered no injuries as a result of this incident, therefore, this is an appropriate case to reconsider the quantum of the sentence.

The JMO who gave evidence, had stated that no wound had been detected over the vagina of the victim. However, in his opinion, he has not excluded the possibility of the incident as described by the victim.

The Learned High Court Judge in the judgment had considered all the evidence adduced by the defence and had given reasons as to why he acted on the evidence adduced by the prosecution. He has accurately analysed the defence evidence with the correct perspective and arrived at the correct finding.

The sentence under 365 2 (b) 2 of the Penal Code carries a minimum mandatory sentence. A mandatory sentence means a punishment for which a judge has no room for discretion. If sentencing is mandatory, judges may "fit the punishment to the crime." Hence, it is the duty of the trial judge to impose an appropriate sentence considering all the circumstances of the case.

After the conviction of an Accused person, the discretion in imposing the relevant sentence would lie with that particular Court, while being guided by a number of factors, such as the circumstances under which the offence was committed by the Accused. Where such specific sentencing guidelines would not be available, it would be necessary to discuss the principles that must be followed when imposing sentences.

 In the case of The Attorney General v H.N.de Silva 57 NLR 121 Per BASNAYAKE, A.C.J.-

                  " A Judge should, in determining the proper sentence, first consider the gravity of the offence as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other statute under which the offender is charged. He should also regard the effect of the punishment as a deterrent and consider to what extent it will be effective. If the offender held a position of trust or belonged to a service which enjoys the public confidence that must be taken into account in assessing the punishment. The incidence of crimes of the nature of which the offender has been found to be guilty and the difficulty of detection are also matters which should receive due consideration. The reformation of the criminal, though no doubt an important consideration, is subordinate to the others I have mentioned. Where the public interest or the welfare of the State (which are synonymous) outweighs the previous good character, antecedents and age of the offender, public interest must prevail. "

In the case of Don Percy Nanayakkara v The Republic of Sri Lanka [1993] 1 SLR 71 the Court held that:

                  “In assessing punishment, the Court has to consider the matter from the point of both the offender and the public. The accused had held high public office and exercised extensive statutory power in conducting public examinations in this country. These examinations have to be conducted fairly and the results declared accurately. Thousands of students who face public examinations, every year, should have complete confidence in the fairness and accuracy of every process of the examinations. The accused has subverted the very basis of this confidence by his conduct in dishonestly showing favour to persons with whom he was acquainted. Therefore, public interest demands that he should be imposed a deterrent punishment.”

In the case of Attorney General v. Mendis [1995] 1 Sri L.R. 138 it was held:

                  “In our view once an accused is found guilty and convicted on his own plea, or after trial, the Trial Judge has a difficult function to perform. That is to decide what sentence is to be imposed on the accused who has been convicted. In doing so he has to consider the point of view of the accused on the one hand and the interest of society on the other. In doing so the Judge must necessarily consider the nature of the offence committed, the manner in which it has been committed the machinations and the manipulations resorted to by the accused to commit the offence, the effect of committing such a crime insofar as the institution or organisation in respect of which it has been committed, the persons who are affected by such crime, the ingenuity with which it has been committed and the involvement of others in committing the crime.”

In this case, the Appellant is a father of two children and was 33 years old at the time of sentencing. He is a mason by profession and earns daily living. He is the sole bread winner of the family. He has no previous or pending cases reported in any court of Sri Lanka. He has been in remand custody since 24.11.2022.

It has been submitted that the Appellant’s income is the only source of income for the whole family, which includes his wife and his two children. Further, both children of the Appellant are still in school and are of a very young age. They heavily depend on the Appellant for their education and their expenses.

Considering the submissions made on behalf of the Appellant and the prosecution, I consider imposing 14 years is not appropriate in this case. Hence, considering all the circumstances of the case, I consider the imposition of 10 years rigorous imprisonment to be a more appropriate sentence for the Appellant. Hence, the 14-year sentence imposed on the first count is reduced to10 years rigorous imprisonment and the 14-year sentence imposed on the second count is also reduced to 10 years rigorous imprisonment. I order the sentences imposed on the first and the second counts to run concurrent to each other. The fine and compensation imposed on the first and second counts will remain the same.

Further, we order the 10 years rigorous imprisonment be deemed to have commenced from the date of judgment i.e., on 24.11.2022.

The Appeal is dismissed subject to the above variation in the jail sentence.

The Registrar of this Court is directed to send this judgment to the High Court of Puttalam along with the original case record.

R. P. Hettiarachchi, J.

I agree.