B. Sasi Mahendran, J.

The Accused-Appellant (hereinafter referred to as "the Appellant"), who is the father of the victim, was indicted before the High Court of Hambanthota on three counts of grave sexual abuse against a minor, Loku Kaluthotage Kavishani Kaushalya punishable under Section 365B (2)(b) of the Penal Code, as amended by Acts Nos. 22 of 1995, 28 of 1998, and 16 of 2006.

At the trial, the prosecution presented evidence through 6 witnesses and marking productions P1-P2 and thereafter closed its case. In defence, the Appellant has given a dock statement.

Upon conclusion of the trial, the Learned Judge of the High Court delivered judgment on 22.05.2024. The Appellant was found guilty on the 1st count of the indictment and sentenced to 12 years of rigorous imprisonment and fined Rs. 10,000, with a default sentence of 10 months rigorous imprisonment. A compensation of Rs. 100,000/- was ordered to be paid to the victim; in default, a term of 1 year of rigorous imprisonment. Furthermore, the appellants were acquitted with the 2nd and 3rd counts.

Being aggrieved by the conviction and the sentence of the Learned High Court Judge, the Appellant has preferred this appeal to this court. The grounds of appeal as pleaded by the Appellant are as follows;

                   i. The Hon. High Court Judge misdirected himself and erred in failing to consider the uncertainty surrounding the first information of the alleged offence. The conflicting evidence as to how and when the complaint originated was not properly examined. This constitutes a vital misdirection affecting the fairness of the trial.

                   ii. The Hon. High Court Judge failed to consider the legal presumption under Section 114(t) of the Evidence Ordinance arising from the suppression of material witnesses.

                   The omission to consider this presumption constitutes a serious misdirection in law.

                   iii. By omitting to evaluate the absence of conclusive medical corroboration, the Hon. High Court Judge erred in law and misdirected himself on a material aspect of the case.

                   iv. The Hon. High Court Judge erred by failing to consider the wider context of family conflict and prolonged institutional care, which could have influenced the testimony and credibility of PW1, leading to miscarriage of justice.

                   v. The Hon. High Court Judge erred in failing to consider the need for corroboration of the child's testimony, especially given the inconsistencies and surrounding circumstances that warranted such caution.

                   vi. The Hon. High Court Judge erred in rejecting the dock statement solely for lack of prior cross-examination, without assessing its independent probative value.

                   vii. The non consideration of the "ghost factor" amounts to a misdirection and an error on the part of the Hon. High Court Judge, as it reflects a failure to engage with a plausible alternative explanation.

                   viii. Failure to consider the Accused-Appellant socio-economic condition as a mitigating factor in sentencing amounts to an error in law and a misdirection.

The facts and circumstances of this case are as follows.

PW 01, Kavishani Kaushalya, the victim in this case, testified that she was 10 years old at the time of the incident and was 15 years old when giving her testimony. She stated that in December 2014, she had been placed on probation due to abuse from the Appellant. The witness further confirmed that the incidents occurred during 2013 and 2014. She revealed the matter to one of the neighbouring aunts. According to her testimony, the incidents took place when her mother, PW 02, was on the night shift and no one else was at home. Further, the witness stated that such an incident had occurred in 2013, with the last incident taking place in 2014. She further testified that, thereafter, a neighbouring aunt advised her to disclose the matter at the seminar held at the school the following day, where police officers were present.

The witness stated that on the day of the last incident, her elder siblings were at school. She and her youngest sister returned home from school at around 1:45 p.m. The Appellant arrived shortly thereafter and made her younger sister leave. At that time, according to the witness, the Appellant sent her younger sister to the woman with whom he was allegedly having an extramarital affair, who had just moved to their neighbourhood. It is noted that this incident occurred prior to the matter being reported to the police.

The witness has described another incident that occurred 2 days prior to the last incident. According to her testimony, while she was asleep, the Appellant removed her clothing.

Page 58 of the brief,

                   

When she attempted to shout, the Appellant threatened to kill her. She further stated that the Appellant engaged in sexual assault by rubbing his genital organ against her vagina. Thereafter, he instructed her to go and wash.

Page 59 of the brief,

                   

The witness admitted that she did not disclose the incident to PW 02 because the Appellant had threatened her, stating that he would kill her mother as well. According to her testimony, she revealed that the Appellant had committed similar acts on several occasions prior to the incident in question. It is further noted that the prosecution referred to another incident that occurred during the night.

Page 63 of the brief,

                   

According to her testimony, while she was sleeping, she suddenly awoke to find herself undressed. We note that she did not clearly disclose what had happened to her on that day.

It is further noted that the witness disclosed another incident which occurred while she was at her aunt’s house. According to her testimony, the Appellant summoned her to their house and compelled her to undress. He then made her lie down, and as described by the witness, rubbed his genital organ against her vagina.

Page 71 of the brief,

                   

The witness described that three incidents had occurred to her, one at night and two during the daytime. She further disclosed that she made a statement to the police on 5th November 2014. She firmly stated that, on the day she was sleeping at night, she did not know what had happened to her.

Page 72 of the brief,

                   

During cross-examination, the defence suggested that the mother of the victim had engaged in an extramarital affair. The witness denied this allegation and stated instead that it was the Appellant who had maintained such an affair. She further stated that she had informed her neighbouring aunt, Senori, about the incident. Following this disclosure, the police came to the school and recorded her statement. It is observed that the defence questioned the witness regarding the dress she was wearing during the last incident, which had occurred five years earlier. The defence then highlighted a contradiction concerning the colour of the dress. With regard to one incident in which the father came and asked the witness to come to the house, it was marked as an omission, as she had failed to disclose this fact to the police in her initial statement. That is a second incident in which she described how the sexual assault took place. The Learned High Court judge has considered this omission in his Judgment.

We note that, without taking into account the fact that the victim was a child, the defence proposed numerous questions as follows.

Page 88 of the brief,

                   

Further, the defence proposed that the witness was falsely accusing the Appellant due to PW 02’s alleged extramarital affair. The witness denied this suggestion. However, it remains a fact that all her children were placed under probation.

Upon the conclusion of the prosecution’s evidence, the Appellant gave a dock statement. The Appellant denied all allegations and asserted that PW 02 had instructed the victim to falsely accuse him, allegedly due to her extramarital affair.

The Learned High Court Judge observed that, during the cross-examination of PW 02, the defence did not raise any questions regarding her alleged extramarital affair.

Page 176 of the brief,

                   

Page 177 of the brief,

                  

Considering the above evidence, the Learned High Court Judge concluded that the prosecution had failed to prove the case beyond a reasonable doubt with respect to the second and third counts.

Page 180 of the brief,

                   

When we analyse the testimony of PW 01, it is evident that she remained consistent with regard to the first count. We note that the contradiction that was marked by the defence is not sufficient for us to disbelieve the victim. We further observe that her testimony has been steady and coherent throughout the examination and cross-examination regarding the first count.

It is pertinent to refer to the following judgments.

In Premasiri V. The Queen 77 N.L.R 86 Court of Criminal Appeal, Alles, J held:-

                   “In a charge of rape it is proper for a Jury to convict on the uncorroborated evidence of the complainant only when such evidence is of such character as to convince the Jury that she is speaking the truth.”

In Sunil and another V. The Attorney General 1986 1 SLR 230it was held that:-

                   “ it is very dangerous to act on the uncorroborated testimony of a woman victim of a sex offence but if her evidence is convincing such evidence could be acted on even in the absence of corroboration.”

In the case of Thambarasa Sabaratnam v. Attorney General, CA 127/2012, Decided on 03.08.2015, H.N. J. Perera,J. (as he was then)

                   “Thus the court could have acted on the evidence of the victim provided the trial Judge was convinced that she was giving cogent, inspiring and truthful testimony in court.”

In light of the judgments and the evidence she has presented, and with no substantial grounds to question her credibility, we find no reason to reject her account of events.

Upon careful consideration, we find that the prosecution has established, beyond a reasonable doubt, that regarding the first count.

In the light of the foregoing, the conviction and the sentence imposed by the Learned High Court Judge are hereby affirmed. I am not inclined to interfere with the disputed judgment, together with the sentencing order and dismiss the appeal.

The Appeal is dismissed.

Amal Ranaraja, J.

I AGREE