IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter, of an Appeal with Special
Leave to Appeal granted by Supreme
Court under Article 128(2) of the
Constitution of the Democratic Socialist
Republic of Sri Lanka.
S.C. Appeal No. 17/2013
S.C.Spl. LA No. 207/2012
C.A.No. . 297/2008
HC. Kurunegala No. 259/2006
Hon. Attorney General
Attorney General‟s Department,
Colombo 12.
Complainant
Vs.
Ambagala Mudiyanselage Samantha
Sampath,
No. 03,
Urupitiya.
Accused
And Between
Hon. Attorney General
Attorney General‟s Department,
Colombo 12.
Complainant-Appellant
Vs.
Ambagala Mudiyanselage Samantha
Sampath,
No. 03,
Urupitiya.
Accused-Respondent
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And Now Between
Ambagala Mudiyanselage Samantha
Sampath,
No. 03,
Urupitiya.
Accused-Respondent-
Appellant
Vs.
Hon. Attorney General
Attorney General‟s Department,
Colombo 12.
Complainant-Appellant-
Respondent
*****
BEFORE : Eva Wanasundera, PC. J
Sarath de Abrew, J. &
P. Jayawardena,PC. J.
COUNSEL : Nimal Muthukumarana for Accused-Respondent-Appellant.
Yasantha Kodagoda, DSG. for Attorney-General.
ARGUED ON : 05.11.2014
DECIDED ON : 12.03.2015
******
EVA WANASUNDERA, PC.J.
In this case, Special Leave to Appeal was granted on the questions of law contained
in paragraph 21(a) of the Petition dated 01.10.2012. The said question is as follows:-
“Is the judgment of the Court of Appeal contrary to law and bad in law?”
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The Attorney General who is the Complainant-Appellant-Respondent in this case
(hereinafter referred to as the „Respondent‟), forwarded an indictment on 04.08.2006
against the Accused-Respondent-Appellant(hereinafter referred to as the “Appellant”) to
the High Court of Kurunegala for having, on a day between 01.08.2003 and 31.3.2004
committed the offence of rape punishable in terms of Section 364(2)(e) of the Penal
Code with regard to W.C. Janitha Perera, a girl under 16 years of age. On 28.10.2008
when the case was taken up for trial in the High Court of Kurunegala, the Appellant-
pleaded guilty to the charge and the learned High Court Judge committed the Appellant
on his own plea of guilt. Thereafter, the High Court imposed a term of 2 years rigorous
imprisonment suspended for a period of 10 years and a fine of Rs.5000/- with a default
sentence of 1 year rigorous imprisonment and also ordered the payment of
Rs.200,000/- as compensation to the victim of the crime W.C. Janitha Perera.
Being aggrieved by the punishment imposed on the Appellant by the High Court, the
Respondent Attorney General preferred an appeal to the Court of Appeal. On
24.07.2012, the Court of Appeal pronounced the judgment setting aside the punishment
in the nature of the suspended term of imprisonment imposed by the High Court and
substituting therefor the minimum term of imprisonment that may be imposed for the
offence, ie. 10 years rigorous imprisonment. However the Court of Appeal did not
interfere with the fine and the order for compensation imposed by the Learned High
Court Judge. The Appellant has appealed from the judgment of the Court of Appeal
and Special Leave was granted by this Court as aforementioned on one question of law.
The argument of the Appellant at the hearing of this appeal was that the judgment in the
case of SC. Reference No. 03/2008 recognizes the imposing of sentences below the
minimum mandatory sentence after considering the circumstances of the particular case
and that the present case should be reviewed accordingly. The Appellant prays that
this Court should exercise its discretionary power and affirm the High Court judgment
which imposed a sentence below the minimum mandatory sentence to the Appellant
setting aside the Court of Appeal judgment. The argument of the Respondent was that
the judgment in SC. Reference 03/2008 with regard to the constitutionality of the
penal provision in Section 364(2)(e) of the Penal Code amended by Act No. 22 of 1995
concerning the minimum mandatory term of imprisonment, is outside the jurisdiction of
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the Supreme Court and should therefore not serve as a valid or binding precedent.
The Deputy Solicitor General further argued that upon the conviction of any person for
having committed an offence in terms of Section 364(2)(e) of the Penal Code, i.e.
„statutory rape‟, the Court is obliged to impose a term of rigorous imprisonment which is
not less than 10 years.
The facts in this case can be narrated as follows. The Appellant, a labourer in
occupation had married the victim‟s sister. They had no children in that marriage. The
victim‟s sister had left the country without the consent of the husband about an year
after the marriage. The Appellant was then invited by the victim‟s parents ie. his mother
in law and father in law, to come and live with them in their house. The victim was a 15
year old girl attending school. Only four of them lived in that house. The girl was found
to be pregnant when her mother took her to the hospital when she was unwell. Then
the pregnancy was 5 months old. The parents stopped her going to school; told the
Appellant not to come home again; took her to another village and kept her there, with
an older married couple who had no children, having in mind to hand over the baby to
them when it is born. The parents did not go to the Police. The victim girl did not make
any complaint at that time to the Police.
Most unexpectedly, some outsider had informed the Police of the area that the
Appellant and the victim were mysteriously missing from that house. It is only then that
the Police had launched an investigation and found that the girl was away in another
house whereas the Appellant was living with his parents in his village close by. The
statement made to the Police revealed that the girl was only 15 years old, and then the
Appellant was taken into custody and was later enlarged on bail.
The victim gave birth to a baby girl on 19.07.2004 in the Kuliyapitiya Base Hospital. It is
the Appellant who informed the Registrar of Births of the area that the baby girl was
born, according to her birth certificate filed of record. It is mentioned therein that the
father of the baby is the Appellant, A.M. Samantha Sampath and that the parents were
not legally married. It is accepted that at the time of her birth, the baby girl Sanduni
Wasana had a father, the Appellant and a mother, the victim.
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The Attorney General forwarded an indictment to the High Court dated 04.08.2006. It
was taken up for trial on 28.10.2008 for the first time. The Appellant pleaded guilty to
the charge of rape of a girl below 16 years and he was subject to punishment by the
High Court under Section 364(2)(e) of the Penal Code as amended by Act No 22 of
1955. The baby Sanduni Wasana is being paid maintenance by the Appellant and
moreover he visits the school as the father of the child when called upon to do so; has
arranged the transportation to and from the school and sends money to maintain the
child. The High Court imposed a punishment of 2 years RI. suspended for 10 years
and imposed a fine and compensation.
The Attorney General appealed against this sentence to the Court of Appeal. It was
argued on 24. 07.2012 and decided also on 24.07.2012, i.e. on the same day and the
Court of Appeal set aside the suspended sentence and imposed a punishment of 10
years rigorous imprisonment. It is from that judgment that the Appellant is before this
Court.
In my mind, the sole question to be decided is whether a mandatory minimum sentence
imposed by statute i.e. Section 364(2)(e) of the Penal Code stifles the hands of the
Court imposing the punishment thus taking away the judicial discretion in sentencing or
whether Court is bound to impose the mandatory minimum sentence. Since the said
sentence, according to the judgment of the Supreme Court in S.C. Reference 03/2008,
is in conflict with Articles 4(c), 11 and 12(1) of the Constitution, the High Court held that
it is not inhibited from imposing a sentence that it deems appropriate in the exercise of
its judicial discretion notwithstanding the minimum mandatory sentence.
I believe that every Judge who sits in a Court and hears the case in the Court of first
instance gets the opportunity not only to hear the case but also to see the case with the
physical eye, to smell the case, to feel the case and to fathom the case with the
present mind. The Judge could hear the words of evidence and observe the body
language of those who give evidence.
In this case, leave aside the victim of rape and the Appellant, there exists a child born
into this world as a consequence of the sexual intercourse between the two and that
child is a girl child who is now over 10 years of age. She is getting the benefit of the
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presence of the father and the mother as at present. The Appellant is willingly working
for the support of the child.
The Charter on the Rights on the Child as declared in the Children‟s Charter 1992 to
which Sri Lanka has proclaimed to be a party, Article 03(2) reads thus:- “The best
interest of the child shall be the primary consideration in any matter, action or
proceeding concerning a child, whether undertaken by any social welfare institution,
court of law, administrative authority or any legislative body ”. Article 7 of the same
reads:- “A child shall be registered immediately after birth and shall have the right from
birth to a name, right to acquire a nationality and as far as possible the right to know
and be cared for by his parents”.
In the case of Dharma Sri Tissa Kumara Wijenaike Vs. Attorney General (SC. Appeal
No. 179/2012- minutes of 18.11.2013) Justice Tilakawardane commented that “the
decision appears to be based on the reality that the Court is the upper guardian of a
child”.
In the present case, there is an existing 3rd person in the picture, ie. the 10 year - old
girl who is born and living in this world as a result of the victim and the Appellant having
had sexual intercourse. It is the Appellant who is the father of the child who at all times
concerned has truly and sincerely declared to be the father and is parenting and
minding the child born to the victim. It is a special case where the Court has to give its
mind to a 3rd party who happens to be in existence as a consequence of statutory rape
to which the father of the child has pleaded guilty to. Supposing the Appellant is sent to
jail for 10 years to come, the girl child of 10 years at present will not get the love and
affection, care and support of the father to whom she looks up to at present and would
not ever understand the concept of the State punishing him for „statutory rape‟
committed on her mother, for which the girl is made to suffer for no wrong committed by
her at any time in her life, during her prime childhood which is included in the 10 years
of rigorous imprisonment i.e. until she is 20 years of age. This fact is a matter of grave
concern of this Court as “the Court is the upper guardian of any child on earth”.
I would like to analyse the judgment in the case of S.C. Reference 03/2008. It was a
matter of a Reference made to the Supreme Court in terms of Article 125(1) of the
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Constitution of the Democratic Socialist Republic of Sri Lanka, made by the High Court
Judge of Anuradhapura inquiring “whether Section 364(2) of the Penal Code as
amended by Penal Code (Amendment) Act No. 22 of 1995 has removed the judicial
discretion when sentencing an accused convicted of an offence in terms of that
Section.” The Learned High Court Judge had submitted her observations to the effect
that the medical report negates the use of force and support the position that sexual
intercourse had been consensual. The Supreme Court stated that even though the
woman‟s consent was immaterial for the offence of rape when she is under the age of
16 years, a woman‟s consent is relevant for a Court, in the exercise of its discretion in
deciding the sentence for such an offence. The High Court Judge had also noted
that a custodial sentence of 10 yrs. R.I. would not benefit the complainant. The
Supreme Court had also observed that there was no mandatory minimum sentence
before the Amendment No. 22 of 1995 to the Penal Code, when it made the
determination in SC Ref. 03 / 2008.
The Supreme Court considered Article 4(c), Article 11 and Article 12(1) of the
Constitution, in S.C. Reference 03/2008. This case discussed many Special
Determinations such as SC./SD 6/98, 7/98, 4/2003 and 5/2003 where it was decided
that the Bills before Parliament in the respective Determinations which tried to impose
„mandatory minimum sentences‟ were held to be inconsistent with Articles 4(c), 11 and
12(1) of the Constitution. The reasons attributed to the said decisions were as follows:-
(a) The imposition of mandatory minimum sentences would result in legislative
determination of punishment and a corresponding erosion of a judicial discretion
and a general determination in advance of the appropriate punishment without a
consideration of relevant factors which proper sentencing policy should not
ignore; such as the offender and his age, and antecedents, the offence and its
circumstances (extenuating or otherwise), the need for deterrence and the
likelihood of reform and rehabilitation.
(b) The imposition of mandatory minimum sentences would result in imposing
identical sentences in case where court thinks it appropriate and where Court
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thinks it most inappropriate which amounts to treating unequals as if they were
equals, in violation of Article 12(1).
(c) The effect of imposition of mandatory minimum sentences would amount to an
erosion of an essential judicial discretion in regard to sentencing. There would
be gross disparities in sentences, which will not only violate the principles of
equal treatment but may even amount to cruel punishment.
The Supreme Court held in S.C. Reference 03/2008 that “as far as Section 364(2)(e) of
the Penal Code is concerned, the High Court has been prevented from imposing a
sentence that it feels is appropriate in the exercise of its judicial discretion due to the
minimum mandatory punishment prescribed in Section 364(2)(e). Having regard to the
nature of the offence and the severity of the minimum mandatory sentence in Section
364(2)(e) is in conflict with Articles 4(c), 11 and 12(1) of the Constitution.”
In the present case in hand, the learned Deputy Solicitor General argued that S.C.
Reference 03/2008 judgment is contrary to the limitation on judicial review as contained
in Article 80(3) of the Constitution and is therefore unconstitutional and outside the
jurisdiction of the Supreme Court.
In that case, the Supreme Court also held that,
“Article 80(3) only applies where the validity of an act is called into question.
However, Article 80(3) does not prevent a Court from exercising its most
traditional function of interpreting laws. Interpretation of laws will often require a
Court to determine the applicable law in the event of a conflict between two laws.
This is a function that has been exercised by this Court from time immemorial”.
I find that the issue in the present case is a conflict between the provisions in an
ordinary law, ie. the Penal Code and the provisions in the Constitution. The Constitution
is accepted as the Supreme Law of the country and the ordinary laws derive their
validity from the Constitution. The provisions in the ordinary law should be interpreted
in the light of the Constitutional provisions. The Constitution should be used as a flash-
light on the provisions of the ordinary law. Any mandatory minimum sentence imposed
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by the provisions of any ordinary law, in my view is in conflict with Article 4(c) 11 and
12(1) of the Constitution in that it curtails the judicial discretion of the Judge hearing the
case. For example, the State files criminal cases against persons in the society; then
these persons face the charges in Court and defend themselves; at the time of
conviction, Court hearing the criminal case has no doubt that the accused is guilty or
not. If the State proves its case without any doubt, the suspect is found guilty; otherwise
he is acquitted. Court has „no discretion‟ in that part of the trial which is decided on the
evidence before court. It is only in deciding on the punishment that the Court has a
discretion. When a minimum mandatory sentence is written in the law, the Court looses
its judicial discretion. That part of the law with the minimum mandatory sentence, acts
as a bar to judicial powers in sentencing or punishing the wrong doer. The Judge
who has seen, felt and smelt the case should be given the discretion in sentencing,
considering all the circumstances of the case, the consequences of a sentence,
whether it serves as cruelty to the wrong doer, the victim or any other person affected
by that sentence etc. Sentencing is the most important part of a criminal case and I find
that provision in any law with a minimum mandatory sentence goes against the judicial
discretion to be exercised by the Judge.
In the present case, we must look at the big picture with the victim of rape the Appellant,
the father of the child born, and the 10 year- old girl child who was born into this world
as a result of the victim having been raped. The victim of rape never complained to the
Police until after a pregnancy of 5 months when Police on its own came to the victim in
search of her when an outsider informed the Police of her missing from home. There
was no chance for the victim to give evidence as the Appellant pleaded guilty to the
charge of statutory rape of the victim. There is a bar for the victim and the Appellant to
enter into a marriage as the Appellant is already legally married to the victim‟s sister
who is living abroad. The child is being looked after by the Appellant father in the eyes
of the society, and the child is dependent on the income earned by the Appellant.
In these circumstances I hold that the Learned High Court Judge had correctly imposed
a suspended sentence of “2 years RI. suspended for 10 years”. I agree with the
decision of the Supreme Court in S.C. Reference 03/2008 and uphold the conclusion of
that case that the minimum mandatory sentence in Section 364(2)(e) is in conflict with
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Articles 4(c), 11 and 12(1) of the Constitution and that the High Court is not inhibited
from imposing a sentence that it deems appropriate in the exercise of its judicial
discretion notwithstanding the minimum mandatory sentence.
I set aside the judgment of the Court of Appeal dated 24.07.2012 and affirm the
judgment of the High Court dated 28.10.2008. However, I order no costs.
Judge of the Supreme Court
Sarath de Abrew, J.
I agree.
Judge of the Supreme Court
P. Jayawardena,PC. J.
I agree.
Judge of the Supreme Court
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