012-SLLR-SLLR-2010-V-2-YOGA-vs.-ATTORNEY-GENERAL.pdf
162
Sri Lanka Law Reports
12010] 2 SRIL.R.
YOGA VS. ATTORNEY GENERALCOURT OF APPEAL
SISIRA DE ABREW, J.
ABEYRATNE, J.
CA 55/06
HC KANDY 352/06
Penal Code Section 36S (B) – grave sexual abuse – Sexual
gratification – Burden of proof? – Test of probability
The accused-appellant was convicted for committing the offence of
grave sexual abuse on a girl-one M and was convicted and sentenced.
On appeal
Held
(1) To establish a charge under section 365 (B) of the Penal Codethe prosecution must establish that the alleged act was done withthe intention of having sexual gratification. This aspect mustbe proved beyond reasonable doubt. Prosecution case does notsatisfy the test of probability.
APPEAL from the judgement of the High Court of Kandy.
Dr. Ranjit Fernando for accused-appellant.
Rohantha Abeysuriya SSC for respondent.
February 24th 2009SISIRA DB ABREW, J.
Head both counsel in support of their respective cases.The accused-appellant in this case was convicted forcommitting the offence of grave sexual abuse on a girl namedDulanjalie Madushani and was sentenced to a term of 10years R.I and to pay a fine of Rs. 5000/- carrying a default
CA
Yoga vs. Attorney General
(Sisira de Abrew, J.)
163
sentence of one year R.I. In addition to the above sentence, theaccused-appellant was ordered to pay a sum of Rs. 50,000/-as compensation to the victim carrying a default sentence of02 years R.I.
This appeal is against the said conviction and thesentence. The facts of this case according to the prosecutioncase may be summarized as follows. On the day of theincident around 9 a.m, when the victim who was playing,came near the accused who was in the compound of thevictim’s house, he (the accused) pulled the victim and as aresult of this act, the victim fell into his lap. The mother of thevictim who was inside the house saw the accused-appellantputting his hand thorough the underpants of the girl. Whenshe ran to the said place, the victim on being questioned,informed the mother that the accused-appellant touched hervagina. The mother did not see the accused-appellant touchingthe vagina of the victim. Suggestion made by the learneddefence counsel that she only suspected this incident andsuch an incident did not take place was admitted by themother of the victim – vide page 54 of the brief.
The accused-appellant in his dock statement statedthat the victim who was playing threw saw dust at him andthereupon he pulled her and she fell into his lap. He furtherstated that when the child was falling, he pulled the child’sunderpants. When the evidence of both sides is considered,we have to consider whether the story of the prosecutionsatisfied the test of probability. The time was 9 in the morningand the incident took place in the compound of the victim.There were people living in the neighbourhood. Under thesecircumstances one should consider whether the accusedperson with the intention of having sexual gratification wouldindulge in a sexual act. This question has to be answered in
164
Sri Lanka Law Reports
12010] 2 SRILR.
the negative. I therefore hold that the prosecution case doesnot satisfy the test of probability.
The other thing that the Court must consider is whetherthe accused did the alleged act with the intention of havingsexual gratification.
To establish a charge under section 365 B of the PenalCode, the prosecution must establish that the alleged act wasdone with the intention of having sexual gratification. Thisaspect must be proved beyond reasonable doubt.
When we consider the evidence, we doubt whether theact, alleged to have been committed, was done with theintention of having sexual gratification. This shows thatthe mental element envisaged in section 365B of the PenalCode was not proved beyond reasonable doubt. In thesecircumstances, we hold that the conviction of the accused-appellant cannot be permitted to stand. For the aforemen-tioned reasons we hold that the prosecution has failed toestablish the charge that has been leveled against theaccused beyond reasonable doubt. In these circumstances,we set aside the conviction and the sentence and acquit theaccused of the charge leveled against him.
ABBYRATHNE, J. – I agree.
Appeal allowed.