014-NLR-NLR-V-69-THE-QUEEN-v.-V.-V.-BRAMPY-SINGHO.pdf
60
The Queen v. Brampy Singho
[Court of Criminal Appeal]
Preeent : H. N. G. Fernando, S.P.J. (President), T. S. Fernando, J.,and Tambiah, J.
THE QUEEN v. V. V. BRAMPY SINGHOC. C. A. Appeal No. 24/1965, with Application No. 27S. C. 255—M. C. Avissawella, 53392
Kidnapping—Quantum of evidence—Misdirection—Penal Code, as. 345, 355 to 360.
Kidnapping within the meaning of sections 355 to 360 of the Penal Codehas to be “ in Order to ” or “ with intent to ” the commission of some otheract, so that the act of kidnapping must be completed before the otheract is completed, and can be completed even if the other intended actis not actually committed.
H. N. G. FERNANDO, S.P.J.—The Queen v. Brampy Singho
61
In a prosecution fqr kidnapping a girl from lawful guardianship in order thatshe may be subjected to unnatural lust and, on a second count, for usingcriminal force on her* with intent to outrage her modesty, it would be amisdirection to tell the jury that tho restraint incidental to the offence ofusing criminal force would per ee constitute kidnapping.
-A.PPEAL against a conviction at a trial before the Supreme Court.
Miss Manouri de Silva, with D. S. Jayalath (Assigned), for the Accused-Appellant.
P.Colin Thome, Crown Counsel, for the Crown.
Cur. udv. vull.
June 21, 1965. H. N. G. Fernando, S.P.J.—
The Appellant was convicted on two counts, the first of kidnappinga girl under 16 from lawful guardianship in order that she be subject tounnatural lust, and the second of the offence under Section 345 of thePenal Code of using criminal force on her with intent to outrage hermodesty. After hearing the arguments of counsel we set aside theconviction and sentence on count one. We now state our reasons.
On the day of the incident, the girl had left home with her little brotherto bathe at a well some distance away. After the girl had bathed andworn her frock, the Appellant, who was quite well known to the girl,came to the well and told the little boy to go home with the bucket usedfor the bath ; thereafter he called the girl to go and pick firewood. Thegirl accompanied the Appellant to some land near an da, and there bothpicked up firewood. After some little time, the Appellant placed a gunnysack on a rock, and having made the girl lie on the sack, he committedthe offence charged in count two. In doing so, he held her down withhands, so that she was unable to prevent the assault on her person.
In directing the Jury as to the evidence relevant to the charge ofkidnapping, the learned Commissioner did not suggest that the Appellantcould be held to have enticed the girl away from the custody of her parentsat the commencement of the incident, that is when the Appellant calledthe girl to go and pick firewood. The learned Commissionerthought perhaps rightly that the evidence did not suffice to establish ataking or enticement at that stage. Instead the Jury were directedas follows “ If at any time she could have returned to her guardian,then there was no restraint with her freedom and there was no interferencewith the custody of the guardian, but if she was taken and if she did not
62
H. N. G. FERNANDO, S.P.J.—The Queen v. Brampy Singho
have the opportunity of returning to her guardian at any moment shewanted, then there was an interference and there was a taking away fromthe keeping of her guardian but it is not a matter for how long or shorta time her freedom was restricted. The time may be ever so short, stillif she was taken away even for a brief period of time, if her freedom toreturn to her guardian was interrupted or restricted, then there was ataking away from the keeping of her guardian.”
According to this direction, any restraint, whatever may be itsimmediate purpose, and however momentary, which interrupts orrestricts the capacity of a child freely to return to her guardian’s custodywould constitute kidnapping. The direction would cover a case inwhich a child is held by the hand or shoulder with the object that shemay be slapped, or even reprimanded. It would perhaps also cover theexample suggested by counsel for the Appellant, namely a case where achild is molested in her own home, and is momentarily restrained in thecourse of the molestation.
Such restraint as the Appellant did impose on the girl in this case wasonly incidental to the offence of using criminal force. The element ofrestraint in that sense would probably be present in nearly every caseof an offence under Section 345 of the Code against a young child. Butit docs not follow that the offence of kidnapping is established in everysuch case. The latter offence is a distinct one requiring proof of factsdifferent from those which arc in issue on the charge under Section 345.The language of Sections 355 to 360 makes this distinction clear. Thekidnapping has to be “ in order to ” or “ with intent to ” the commissionof some other act, so that the act of kidnapping must be completed beforethe other act is committed, and can be completed even if the otherintended act is not actually committed.
The distinction is very well illustrated by Section 356, which prescribesthe punishment for kidnapping a person with intent to wrongfully confinethat person. To establish the charge of kidnapping under that Section,it would not suffice to prove only the act of wrongful confinement alreadypunishable under Section 333.
In our opinion the proper direction to the Jury in this case should havebeen that while the evidence relating to the actual criminal assault on thegirl was relevant to establish the object which the Appellant may havehad in mind, it was not relevant to the preliminary and distinct questionwhether he kidnapped the child in order to achieve his object. It iaapparent that, in the Commissioner’s own view of the evidence, theAppellant would probably have been acquitted if the proper directionhad been given.
Conviction on 1st count set aside.