REGINA v. W. G. DHARMASENA et al

004-NLR-NLR-V-58-REGINA-v.-W.-G.-DHARMASENA-et-al.pdf

[Ik the Court of Crimikal Appeal]
1956 Present :Basnayake, C.J. (President), Pulle, J., and Fernando, J.REGINA v. W. G. DHARMASENA et al.Appeals 115 and 116 of 1955, with Applications 176 and 177S. C. 2S—31. C. 3Iatara, C. 1810■Rape—Prosecutrix's evidence—Corroboration—Evidence Ordinance, s. 134—Summing–‘ -up—Erroneous statement as to evidence—Duty of Counsel to invite Court'sattention thereto.'~'
In a charge of rape, ft Is not in law necessary -that the evidence of thoprosecutrix ^hbuld bo corroborated.
Obiter : "Where In n summing-up tho Judge makes an erroneous statementas to tho evidence, he should be invited by Counsel to correct it immediately.Otherwise, an appeal based on such error will not bo encouraged.
.Appeals, with applications for leave to appeal, against twoconvictions in a trial before the Supreme Court-.
G. E. Chilly, with A.B. Perera, M. S. 31. Kazeeni, and Daya Patera,for 1st accused-appellant.
Colvin R. de Silva, with M. E. de Silva, for 2nd accused-appellant.
A. C. A lies. Senior Crown Counsel, for the Attorney-General.
Cur. ado. vult.
April 2, 1056. Bas.vayake, C.J.—
The first appellant was convicted of the offence of rape and the secondappellant of abetment of that offence. The first appellant was theSuperintendent of his father’s estate in Dcniyaya and tho secondappellant was an English Schoolmaster and a friend of the first. Theprosecutrix is tho mistress of one Pelix Fernando.
The story for tho prosecution is that the witness Felix Fernando alongwith some others was arrested and remanded to the custody of the Fiscalin connexion with a charge of rape. In order to enlist his support for thedefence of Felix Fernando, the prosecutrix went to tho house of tho firstappellant accompanied by her younger brother Reuben about 11 a.m.on 3rd September 1951. Apparently moved by her .appeal ho undertookto spend even a lakh of rupees in the defence of Fernando and said thatho would go to Gallo where Fernando was on remand to see him, andasked her to come the following day at about 3.30 p.m.
When she went the next day again accompanied by Reuben the secondappellant was also there. The appellants were seated on two chairs andwere engaged in conversation. The first appellant asked her to sit down.She sat on tho step while her brother sat under a tree in the compound.Thereupon the first appellant moved his'chair close to her and after tellingher not to worry about the case and assuring her that somehow or otherhe would get Fernando released, he held her hand. The prosecutrixshowed her resentment at his action by brushing aside his hand andescaping from his grasp. But he followed her and held her by' her jacketwhich got torn when she struggled to free herself. Failing in her attemptto escape she raised cries hut they were of no avail for lie lifted her bodilyand took her inside the house, placed her on a bed, threatened to kill herif she raised cries, gagged her and tied her chin. He then summoned thesecond appellant who tied her ankles together. Thereafter the firstappellant tied her hands together and placed them against her chest.
Tlio second appellant then uttered these worclsof warning : “Kalu Nona,this Pangtri watte Mahatinaya can spend even a lakh if he wants.. Heis the only ganankaraya in Deniyaya.”.
Then the first appellant having attempted to havo intercourse withher got ofF her body and went out and fetched a gun which ho showed herand said:“ If you struggle I will shoot you with this and kill you.”
Thereafter he placed the gun against the bed, untied the hands and feetof the prosecutrix and had intercourse with her. ‘
According to Reuben he was on the compound when he saw the firstappellant hold his sister’s hand. She pushed his hand and jumped out,but lie held her by her jacket, which got torn, and' she then foil down andraised cries. At this stage Reuben ran away.
The medical evidence of the injuries found on the prosecutrix threedays afterwards strongly supported her story that she had been forcedto submit to an act of sexual intercourse.
There was sufficient evidence for the jury, upon a proper direction, tohold that the first appellant committed rape. Hence the submission onhis behalf that the verdict is unreasonable cannot be sustained.
The principal submission made on behalf of the first appellant was thatthe learned trial Judge failed to direct the jury that as against liim therewas in law no corroboration of the evidence of the prosecutrix- Weare unable to uphold this submission as in our view the story of the prose-cutrix was corroborated in several respects. Our Penal Code does notrequire that the evidence of the prosecutrix in a charge of rape should becorroborated although it does provide that in the case of charges of procu-ration under section 360A no person shall be convicted upon the evidenceof one witness, unless such evidence be corroborated in some materialparticular by evidence implicating the accused. Another such provisionis to be foxuid in the Maintenance Ordinance. There is no presumption,as in the case of an accomplice, that a prosecutrix in a case of rape isunworthy of credit unless she is corroborated in material particulars.Except where corroboration is expressly required by statute, our rule, ofevidence 1 is that no particular number of witnesses shall in any case berequired for the proof of any fact..
Counsel also complained that the evidence given by Reuben in theMagistrate’s Court, which was elicited for the purpose of discrediting thatwitness, was put to the jury as corroboration of the prosecutrix. ■. ,
The learned trial Judge rightly directed the Jury that corroborationof the story of the prosecutrix was not in law necessary but that it wasnot safe to convict upon the uncorroborated testimony of the prosecutrix,and that nevertheless they were free to return a verdict against theprisoner if they were convinced of the truth of the-story of the prosecutrixeven though she was uncorroborated.. Under the English commonlaw too the testimony of a prosecutrix was alone sufficient evidence tosupport a conviction; • neither a second witness nor -corroboratingcircumstances were necessary 2.
. Evidence Ordinance, Section 134..
' illiam Crocker, 17 Cr. App. It. 45.
Thomas James Jones, 19 Cr. App. R. 40.
Tho law is thus stated in Kale’s Pleas of the Crown, Volume I, page 633:—
“ Touching the evidence in an indictment of rape given to the grandjury or petit jury..
“ The party ravished may give evidence upon oath, and is in law acompetent witness, but the credibility of her testimony and how farforth she is to be believed, must be left to the jury, and is more or lesscredible according to the circumstances of fact, that concur in thattestimony.
.“ For instance, if the witness be of good fame, if she presently dis-
covered the offence and made pursuit after the offender, shewed cir-cumstances and signs of the injury, whereof many are of that nature,that only women arc the most proper examiners and inspectors, if thejilace, wherein the fact was done, was remote from people, inhabitantsor passengers, if the offender fled for it-, these and the like are concurringevidences to give greater probability to her testimony, when proved byothers as well as herself.”
Hale’s statement of the law is reflected in t-lie pronouncements of theCourts of England and of those American States whose statute law docsnot require that the evidence of the prosecutrix in a charge of rape shouldbe corroborated. The view of the Courts of England is quoted in ourreports and need not be repeated here. The American view can begathered from the following extracts from the judgments of Parker J.andBrickell, C.J.—
Parker J. in Ellison v. State, 19 K. M. 42S, 14-1 Pac. 10.
“ But in t-lie absence of a statute a mail may be convicted of rape onthe uncorroborated testimony of a strumpet-, or lie may be convictedon the uncorroborated testimony of a giil below 10 years of age …
“ It is of course true that in a sense the testimony of a prosecutrixmust bo corroborated. That is, it must bring together a number of' surrounding facts and circumstances which coincide with and tend toestablish the truth of her testimony. Without such surroundingfacts and circumstances, the balcl statement- and charge of a womanagainst a mail would be so devoid of testimonial value as to render itunworthy of belief, and to cause it to fail to meet- the requirementsof the law, namely, evidence of a substantial character. In this sensethere must, of course, be corroboration. ”
Briclell, C.J. in Boddic v. State, 52 Ala. 395, 39S.
“ Xo principle of law forbids a conviction on her uncorroboratedtestimony, though sho is wanting in chastity, if the jury aro satisfiedof its truth. Her tcstimonjr should bo cautiously scrutinised, and Courtand Jury should diligently guard thc-mseivcs from the undue influenceof the sympathy in her behalf which the accusation is apt to excite.If she did not conceal but immediately discovered the offence, and theoffender is known to her ; if the place of its commission was such thatif she made outcry it would not probably be heard and bring her assis-tance and defence,—these and other circumstances should he considered
by tho -Jury. The manner in which she testifies, the consistency of hot-test imony, should also bo carefully considered. If, viewed fairly andcnrefull3', tho Jury are satisfied of the truth of her evidence, it needsno corroboration from other witnesses to support a conviction.”
Objection was also taken to the following passage in the learned trialJudge’s summing up. But we are unable to hold that the direction iswrong in law or prejudicial to the prisoners.
“ Gentlemen, in charges of sexual offences it is always the duty ofthe Judge to warn the jury that it is unsafe to act upon tho uncorro-borated testimo 113- of the woman who makes the accusation. It isnot a rule of law but it is a rule of prudence and it is a rule of commonsense to take up the view that is so often expressed and to which Ihave referred to on earlier occasions that these charges are very easy tomake and very difficult to disprove. So that 3-011 must warn 3-our-selves that it is generally and nearly ahia's quite unsafe to act on thewoman’s uncorroborated evidence even if 3‘ou think she is speakingthe truth unless there is some independent evidence, that is evidencecoming from an independent source which confirms in material detailnot 011I3- there was intercourse between the parties but also that it tookplace without- her free will and consent.
“ Obviously 3-011 cannot expect this rule to mean that everythingthat the woman has said in regard to the crucial matters must bocorroborated by independent evidence because then you see it reallyamounts to this. You may well keep the woman out of the witness-boxand 3'ou get independent evidence to prove the essential elements ofthe crime. I can hardly imagine that there would ever be such asituation that there would be indejiendent evidence to prove whathappened within a secluded spot.
“ Tho rule of common sense does not go to that extent. You mustask 3-ourselves whether there is some independent evidence whichyou believe to be true which tends to connect the accused with thecrime, which tends to make her allegation which is more probable thannot on a material important detail.”
Learned counsel also, criticised the following directions of the learnedtrial Judge in regard to the'evidence of the boy Reuben :—
“ Now, gentlemen, what is the corroborative evidence in the strictsense, namely, independent evidence on material points which tend toimplicate the accused and convict him with the crime ? There is thoevidence of the bo3' Reuben. Arc 3-ou quite satisfied at least when hesays that on the 4th September in the afternoon when he went therewith Premawathie he saw the 1st accused eanying Premawathie intothe house ? If you are convinced that is true that is corroborativeevidence to the extent that it shows that the 1st accused was actingin a most suspicious manner in regard to a woman whose husbandwas away from the village at the time and if you are quite satisfied
that Reuben is speaking the truth, there was certainly an opportunityafforded to the 1st accused to commit the crime. If 3*011 believe theevidence of Reuben, it is certainly a very suspicious piece of evidenceagainst the 1st accused.
“ Well, I shall refer to criticism of the evidence of Reuben as a witnessin a few minutes.”
Later on in the charge he said :—
*' Reuben’s evidence has been criticised. You saw the boy himself.There was the controversy about the age. He was not quite 15 atthe time of the alleged incident. You saw him as he appears 15 monthslater. He seems to be an extremely unintelligent 3'oung man, whichI imagine if his intelligence quotient., if tested, would be extremely lowwhich the experts call it. He cannot even sign his name, cannotread a clock, and he apparently had left school C or 7 3-ears ago, astrange time to leave school. He is obviously an unsatisfactory witnesswhere matters of recollection are concerned. He first said that hesaw the 2nd accused there on both visits and then in answers to ques-tions he was unable to reply at all. One knows these 3*oung childrenare easily tutored, but this was an unsuitable boy for tutoring at all.He could not remember the piece of recitation which apparently he wastaught to recite before a jury, but it is for you, realising his lack ofintelligence and his youth, to say whether you believe him when hesa3*s that he went with his elder sister on the 4th in the afternoon andthat he saw her being carried away by the 1st accused. If 3*0x1 areconvinced that is true, that is an item of evidence which 3*011 will con-sider as corroboration, for what it is worth, not obviously of the factof intercourse, but corroboration that there was an opportunity forthe commission of the crime, and that is evidence of a piece of conductwhich was suspicious in nature because the superintendents and mem-bers of estates do not carry women forcibly into their houses on occasionsparticular^ when the gentleman’s wife and children were not thereat all.”'
Learned counsel urged that the above direction contained a misdirectionof fact on a veiy vital point. The defence proved through the Clerk ofAssize the following passage from Reuben’s dcjiosition in the Magistrate’sCourt:—
“ When she fell down the 1st accused lifted her bodil3r and took herto the room.”
But at the trial Reuben did not sa3* that the first appellant lifted theprosecutrix and carried her awaj-. His evidence was as follows :—
The 1st accused had a little chat with m3' sister and he held m3*sister’s hand and m3' sister pushed aside his hand and jumped out.Then the 1 st accused held her by the jacket. Then m3r sister raised the
cr3r ‘ Budu Annne. ’When he held her b3* the jacket
the jacket got torn and she fell down. At that moment she raised thecry ‘ Budu Amme ’ and I ran away.
To C'onrl :
J I:SX. Q. At the time you rail away your sister was on the ground iI did not see him move away from the compound.
Kjoint ination coat in tied :
J];19. Q. IVhcro did you run ? T ran along (lie road in the directionof our house.'
] ltd. 0- Rid you get to your house ? Xn.
Jill. Q. Why what stopped you l I waited on the road to seewhether my sister would return and after waiting therefor some time I went again to sec my sister and then fmet her near the river.-
1)42.- Q. At that time what- was her condition ? Her jacket wastorn and there was an injury on her lip and she wascrying.”
Jt would appear from the evidence of Reuhen quoted above* that.'Reuben corroborated the prosecutrix in the main and that the obviousslip of the trial -fudge in stating that she was corroborated in respect ofher evidence that she was bodily lifted and taken inside the house, thoughit be incorrect-, is not in view of the other evidence of Reuben such amistake as would call for interference with the verdict.
Rut there is, however, the. criticism that he failed to direct the juryin regard to the statement of Reuben before the Magistrate which wasinconsistent with his evidence in the trial Court.
In the light- of the other evidence of Reuhen the inconsistency cannot heregarded as one which is so important as to call for specific mention as astatement which seriously affects the value of the hoy’s evidence, as thelearned Judge hail in his introductory remarks, sufficiently cautionedthe Jury as to the way in which his evidence should lie approached.
•Strong reliance was placed on the judgment of the Court of CriminalAppeal in The Kituj v. Atulcorale 1 in which a verdict- of rape was setaside on the ground that complaints made by the prosecutrix shortlyafter 1-lie alleged offence were wrongly presented to the jury as beingcorroboration of her evidence, but in the present ease the charge exceptfor the unfortunate slip in dealing with the boy’s evidence is not open toobjection.
As we have already held, the first appellant was rightly convicted bythe jury. His conviction necessarily involved the complete acceptanceof the evidence of the prosecutrix as to the circumstances ill which shewas raped by tlie first appellant. That- evidence clearly implicated thesecond appellant as well, and having regard to the warning duly adminis-tered by the Judge that there was no corroborative evidence as against-the second appellant, wc arc unable to hold that the verdict- against himwas in any way unreasonable.
(10IS) SO X. L. It. 2SG.
22
IVrHfiH'/o r. fit/oufirnnlmn
As the question lias arisen in this case we should like to add that it isimportant that both counsel should follow the Judge’s summing up andbring to his notice any erroneous statement as to the evidence. In theinstant case the record shows that the learned trial Judge inquired fromboth the counsel for the prosecution and the counsel for the defencewhether there was anything more that lie should tell the Jury and bothanswered in the negative. The slip in question appears to have passedunnoticed by both counsel.
For the guidance of counsel we should like to add that where in asumming up the Judge makes an erroneous .statement as to flic evidence,lie should be invited to correct it immediately. An appeal based on sucherror will not bo encouraged where correction would obviously have lieenmade, if the Judge’s attention had been drawn to the matter1.
It has been held both in Kngland and elsewhere that if some irregularitycomes to the knowledge of counsel before the verdict is returned he shouldbring it to the attention of the Court at the earliest possible moment,and that it ought not to be held in reserve with a view to taking it beforethe Couit of Criminal Appeal.
Where counsel has failed to bring timeously to the attent ion of the Courtof trial .any such irregularity which would undoubtedly be corrected bythe trial Judge if his attention were drawn to it, the Court of CriminalAppeal will not- allow advantage to be taken of it when it is too late toremedy it except by quashing the conviction 3.
For the reasons given above the appeals arc dismissed. The periodbetween the final date of hearing of this appeal, 1 2 th January 1050, amithe date of this judgment, should be deducted from the sentence whichthe prisoners have yet to undergo.
.-I p pools (1 is»i i-'srrl.