025-NLR-NLR-V-46-THE-KING-v.-BALAKIRIYA-alias-WADU-BALAYA.pdf
The King c. Balakiriya alias Wadu Balaya.
63
[Court of C rim in au Appeal.]
1945 Present: Howard C.J., Keuneman and Jayatilleke JJ.
THE KING v. BALAKIRIYA alias WADU BALAYA.
26—M. C. Ratnapura, 39,325.
Rape—Consent of complainant—Burden of proof—Misdirection.
Where in a charge of rape the presiding Judge directed the jury asfollows: —
" You must be satisfied by the balance of evidence with his storythat he had intercourse with the consent of the complainant.”
Held, that there waa a misdirection of law as. it places the burden ofproving that he had intercourse with the consent of the complainant on
the accused.
J.L. B. 21 Cal. 19.
• 30 N. L. R. 78.
* A. I. S. 11914) Cal. P. C. 129.
84
HOWARD C.J.—The King c. Balakiriya alias Wadti Balaya.
A
PPEAL against a conviction by a Judge and jury before theWestern Circuit.
. A. H. C. Je Silva for the appellant.
E. H. T. Gunasekera, C.C., for the Crowp.January 29, 2945, Howahd C.J.—
Cur adv. vult.
In a case of rape the burden on the prosecution is to prove first of allthat the accused has had sexual intercourse with the complainant, and,secondly, when the complainant is over the age of consent, that suchintercourse took place without her consent. On page 6 of the chargethe learned Judge has told the jury as follows : “ You must be satisfiedby the balance of evidence with his story that he had intercourse withthe consent of the complainant This passage places the burden ofproving that he had intercourse with the consent of the complainant onthe accused. That is clearly a misdirection. We have been referred byMr. Gunasekera to various passages in the summing-up which go to showthat the burden is correctly placed on the prosecution. Those passages,in our opinion, are not specific enough to minimize the eSect possibly onthe minds of the jury of the passage on page six. One of the passagesreferred to by Mr. Gunasekera is on page 24 and is as follows: ‘ ‘ Thequestion is. do you believe the version of the incident as deposed to bythe girl in the witness-box ? After making due allowance for the contra-dictions pointed out to you by Counsel for the defence, do you accepther story or not ? If you do not- accept her story, then you will acquitthe accused That passage does not make it clear to the jury that the. burden was on the prosecution to prove beyond all reasonable doubtthat the intercourse took place without her consent. On page 25Mr. Gunasekera has invited our attention to this passage:" Now it is
admitted that the accused went to the house on the day in question andhad connection with this girl; the only question is whether i.t was forcibleor not ”. There again there is no statement that the onus of provingthat it was forcible rests on the prosecution. Then again, on page 27of the charge Mr. Gunasekera has invited our attention to the followingpassage:“ If, on the other hand, you do not accept the story of the girl,
or, if you find that there is a reasonable doubt about the truth of theprosecution case, then you will acquit the accused ”. With regard tothis passage, we think that the direction with regard to the onus of proofwas not specific on this question of whether intercourse took place withthe consent of the complainant.
In these circumstances we are of opinion that the conviction cannotstand. The only question that remains is whether there should be a freshtrial. The corroboration adduced by the Crown was extremely slender.Moreover, the conduct of the complainant after intercourse had .takenplace is open to such criticism as throws some doubt on her veracity. Wetherefore make no order with regard to a new trial.
Set aside.