106-NLR-NLR-V-51-COSTA-Appellant-and-GORDEN-S.-I.-Police-Respondent.pdf
Co'-ta u. Garden (.S'. 1. I'olictt)
447
1950Present: Dias S.P.J.COSTA, Appellant, and GORDEN (S. I. Police), RespondentS. C. 292—M. C. Colombo, 8,474{B
Penal Code—Sections $41 and 345—Using criminal/ore*—Defining section formulatestwo definitions—“ Without that person's consent "—Burden of proof—u Out-raging die modesty of a woman ”—No such offence—Sexual offence—Corro-boration of alleged victim's evidence necessary—Evidence Ordinance, e. 15$.Where the accused was charged and convicted, under section 345 of thePenal Code, of using criminal force on a girl “ with intent to outrageher modesty ”—
Held, that section 341 of the Penal Code formulated two definitions of theoffence of using criminal force. Under the first definition the burden of proofwas on the prosecution to establish that what was done was done “ withoutthe consent” of the woman. Under the second definition no such burdenrested on the prosecution.
Held further, (i) that v'outraging the modesty of a woman ” was not anoffbnne and the criminal force alleged to have been used in this case wastlterefora that contemplated in the second definition.
(U) that in sexual offences the evidence of the alleged victim shouldbe corroborated by independent evidence, either oral or circumstantial.
(iii) that where a witness has been asked a question solely relating to hiscredit and has denied it, he cannot thereafter be contradicted—a. 153 of theEvidence Ordinance.
448
DIAS 6.P.J.—Costa v. Gordon (&■ 1■ Police)
.^^.PPEAL from a judgment of the Magistrate’s Court, Colombo.Stri Perera, for accused appellant.
8. S. Wijesinha, Crown Counsel, for the, Attorney-General.
Cur. adv. vulL
June 14, 1060. Dias »S.P.J.—
This is an appeal from a conviction under section 345 of the PenalCode. The appellant was sentenced to undergo six months' rigorousimprisonment for using criminal force on a girl named Podina withintent to outrage her modesty on October 31, 1949.
Counsel has taken several points. It is submitted in the first place,that the Magistrate wrongly put on him the burden of proving thatthe girl consented to his advances. It is submitted that, like in the caseof rape, the burden of proving that what was done was done without theconsent of the woman, rests on the prosecution—see R. v. BaiakiriyaInthe second place it is urgod that the Magistrate erred in rejecting thebook D2 tendered in evidence by the defence. Finally, it is contended thatthere is no corroboration of the story told by the woman.
Dealing with the first point—What is '‘Criminal Force ” i section 341of the Penal Code formulates two definitions of the offence—
Whoever intentionally uses “force” to any person lotihoutthat person’* consent, in order to the committing of any offence—issaid “ to use criminal force to that person ” ; and
Whoever intending illegally by the use of “ force ” to cause,or knowing it likely that by the use of such force ” he will illegallycause injury, fear, or annoyance to the person to whom such “ force ”is used—is said “ to use criminal force to that person
On which of these two definitions is the present charge based ? If theformer, then, the burden of proof undoubtedly would be on the prosecutionto establish that what was done was done ‘‘ without the consent ” ofthe woman. If the latter, no such burden would rest on the prosecution.In the latter eront the plea that the woman consented would be anexculpatory plea under Chapter IV of the Penal Code containing thegeneral exceptions to criminal liability. The burden of proof in regardto such a plea would rest on the defence.
There is no offence known to our law called “ Outraging the modestyof a woman ”. “ Modesty ” means the feminine sense of proprietyand decorum. Therefore, “to outrage the modesty” of a womanmeans “ to insult, affront, or abuse the feminine sense of what is properand decent ”. Where a man uses " force ” with the intention of insulting
* (J945) 46 N. L. H. 83.
DIAS S.P.J.—Costa v. Garden (5. J. Police)
449
or affronting the sense of propriety of a woman, he cannot be said to havedone something “ in order to the committing'of an offence I am,therefore, of opinion that the “ criminal force ” alleged to have beenused in this case is that defined by the second definition. In that case,there is no burden oast on the prosecution to prove ‘as an ingredientof the offence that what was done was done “without the consent” of thewoman. The first point, therefore, fails.
When tho master of the woman Podina was cross-examined, in orderto impeach his credit, it was suggested that he was a committee memberof a certain co-operative society, and that he dishonestly altered theamount of some bills. The witness denied the imputation. Thisevidencewas totally irrelevant to the issue before the Magistrate, except on thequestion of the credit of the witness. ‘ The defence sought to contradictthe witness by producing the book marked D2. The Magistrate refusedto admit it on the ground that it contained no translation. Withoutentering into the question whether under section 301 of the CriminalProcedure Code, the Magistrate was right in rejecting the book, it isclear that the evidence was rightly rejected under section 153 of theEvidence Ordinance. A witness who has answered a question whichgoes solely to his credit, cannot be contradicted. The second point,therefore, fails also.
It is settled law that in sexual offences, there is necessity that theevidence of the alleged victim should be corroborated by independentevidence, either oral or circumstantial. There is no such evidenceof corroboration in this case. Podina was employed under a Mr. Jaya-sekera. On October 31, 1949, at about 3 p.m. she went to the co-opera-tive store to buy provisions. She says she was accompanied by a childcalled Lily. Who Lily is, whether she is a fellow servant of Podina,and how she came to accompany Podina on this day, do not appearin the evidence. She is the best available witness to corroborate Podinaas to what happened. Not only has she not been called, but there is noexplanation at all as to why she was not called.
Podina says that one plank of the boutique was open when she gotthere. She asked the appellant whether there were vegetables. Hereplied that there were vegetables, and invited her in, and asked Lilyto stand near the opening. The appellant then is alleged to have closedPodina’s mouth with his hand and threatened her. He took the clothoff her body and unfastened the pins from her jacket, lay on her, whensome liquid was “ emitted ” on the girl. The accused then gave hera towel to wipe herself. She did so, got up, clothed herself and came out.She said she came out weeping. She was then seen by Thomas andSaibran.
.Hie clothes of the girl have not been sent to the analyst for examination.She was not examined by any doctor. Saibran has not been called.Thomas says that when he was walking along the road he saw Podinacoming out of the boutique with a little girl. He says the shutters of theboutique were all closed, and that the accused opened a shutter for thegirl who came out weeping. On this material point this witness is con-tradicted by Podina who says that one plank was open all the time.
450
BASNAYAKE J.—Rvlrigo v. I’waHgit
It is improbable that the accused, who had just committed a seriousoffence on an unwilling girl, would actually open the shutter and comeout to be seen by people on the road. The Magistrate, however, hasfailed to address his mind to the question of corroboration at all. Thefailure of the prosecution to call Lily or to explain her absence is a circum-stance which tells strongly against the prosecution. Tn my opinion,this is a case in which the Magistrate would have had a reasonable doubt,had he properly addressed his mind to the ingredients which have to beproved in cases like this. I quash the conviction and acquit the appellant.
Appeal allowed.