GRATXAEN J.—Nalliah v. Herat
1951Present : Gratlaen J.K.NADDIAH, Appellant, and P. B. HERAT (Inspector ofPolice), Respondent
S. C. 1,322—M. C. Colombo, 8,874
Evidence—Charge on two counts—Acquittal on one count—Effect on verdict on the othercount.
Kidnapping from lawful guardianship—“ Takes or entices ”—“ Out of the keeping offthe lawful guardian ”—Penal Code, ss, 352, 354.
Where an accused is tried on. two connected but different charges in the sameproceedings a conviction on one count cannot be based on evidence which has-by implication been rejected by an order of acquittal on the other count.
A person who takes out a female child under 16 years of age without herguardian’s express consent but without the proved intention of depriving thegirl of her unrestricted freedom to return to her guardian’s protection whenevershe chooses to do so does not commit the offence of kidnapping from lawful;guardianship within the meaning of section 352 of the Penal Code.
.Appeal from a judgment of the Magistrate’s Court, Colombo.
H. V. Perera, K.C., with C. S. Barr Kumarakulasinghe and K. Rajarat-nam, for the accused appellant.
H. A. Wijemanne, Crown Counsel, with E. H. C. Jayetileke, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
May 2, 1951. Gratiaen J.—
The appellant, who is a married man with a long period of service in theRailway Department, was charged in the Magistrate’s Court of Colombowith having on 3rd October, 1950, committed the following offences :—
(а)Kidnapping a girl aged 13-|, named Rita Da Faber, from the lawful
* guardianship of her mother—an offence punishable undersection 354 of the Penal Code ;'
(б)using criminal force on the girl Rita with intent to outrage her
modesty—an offence punishable under section 345 of the PenalCode.
The learned Magistrate decided to try these grave charges summarilyin terms of section 152 (3) of the Criminal Procedure Code.
4746RAHAEN J.—Nalii ah v. Herat(
At the conclusion of the trial the appellant was acquitted of the chargeof using criminal force, but was convicted on the charge of kidnapping.'The present appeal is from this conviction.
Rita Xia Faber’s version is that when she and her younger sister wereleaving the precincts of St. Anthony’s Church at Kochchikade on the after-noon of the day in question they met the appellant (who was well knownto them and had until recently been their mother’s landlord). He invitedRita to go with him to the Regal Cinema as his guest. She joined him in abus, having parted company with her sister who went home alone. Ritaihas made some suggestion in her evidence that she was taken into thebus “ by force ”, but this allegation can safely be discounted in viewof her earlier statement to her mother that she had accepted the invitation.Indeed, she subsequently admitted at the trial that after she entered.the bus she “ went to the pictures quite willingly ”. I am satisfied froman examination of the evidence for the prosecution that during the earlierstages of the transaction, at any rate, Rita had no reason to think thatthe appellant entertained any sinister motives in making his offer to“ treat ” her to a visit to a cinema. On the way to the entertainment theyhad some light refreshments at his expense at a “ buriyani ” shop.
So far there is no substantial dispute as to what took place. Theappellant says that he was kindly disposed towards this young girl and thathis only motive was to give her a pleasant “ outing ” until it was time for herto return to her mother and for him to return to his wife. If that be true, hewould certainly be well advised to restrict his future manifestations ofgenuine affection for other people’s children by first consulting the parents‘Concerned.
The main dispute is as to what took place after this incongruous couplehad taken their seats together at the Regal Theatre. Rita complains that-after the lights went out the appellant put his arms round her andacted improperly towards her. She was considerably upset, she says, andwished to leave the cinema immediately. The appellant then took heraway but, instead of accompanying her home direct, he took her by forceto the Galle Face green, and taking advantage of the darkness in a sec-luded spot which he selected for the purpose, took advantage of her in amanner in which to my mind would not only have warranted convictionsunder sections 345 and 354 of the Penal Code but called for sentences farbeyond the jurisdiction of a Magistrate or a District Judge to impose.Indeed, the original complaint to the police was that rape had been com-mitted, but this charge was not persisted in because it was negatived by amedical examination. This part of Rita’s story is stoutly denied on oath by•the appellant ; he says that the whole transaction was perfectly mhocent ;they saw the picture to its conclusion and then went home together. Itis common ground that, within a reasonable time of the horn* when the-theatre would have closed after the performance they returned togetherby bus to their respective homes which are situated in close proximityto one another.
In this sharp conflict of testimony, the learned Magistrate examined the^evidence and acquitted the appellant of the charge of using criminal force
GRATIAEH J.—tCalliah v. Herat
on Rita with intent to outrage her modesty. I agree with Mr. Wijemanne•that the grounds on which this order of acquittal was based are not veryconvincing, but it seems to me that so long as this acquittal stands—and the prosecution has not appealed against it—the appellant isentitled, for the purposes of his defence to the outstanding charge of kid-napping, to claim the full benefit of the order in his favour on the othercharge. This is a fundamental principle of the criminal law which wasrecently emphasised by the Privy Council in Sambasivam v. PublicProsecutor, Federation of Malaya 1 :—
“ The effect of a verdict of acquittal pronounced by a competentCourt on a lawful charge and after a lawful trial is not completelystated by saying that the person acquitted cannot be tried again for thesame offence. To that it must be added that the verdict is binding andconclusive in all subsequent proceedings between the parties to theadjudication. The maxim res judicata pro veritate accipitur is noless applicable to criminal than to civil proceedings. Here, the appellanthaving been acquitted at the first trial …. the prosecutionwas bound to accept the correctness of that verdict at the second trial.And the accused was no less entitled to rely on his acquittal in so far as itmight be relevant to his defence. ” (Per Lord Macdermott).
In that case the Judicial Committee of the Privy Council was concernedwith the effect of an acquittal on a particular charge in an earlier trialon a connected but different charge at a subsequent trial. But the rule isof general application and has equal force when one considers the effectwhich an order of acquittal on one charge would have on a connectedcharge in the same proceedings. A verdict on one count cannot be based onevidence which has by implication been rejected in disposing of anothercount at the trial.
It is in the light of this principle that the evidence on the charge ofkidnapping outstanding against the appellant must be approached.Rita’s version of the alleged offence against her modesty has considerablebearing on the question of the appellant’s guilt or innocence on the chargeof kidnapping. This evidence, in the learned Magistrate’s judgment, couldnot with safety be acted upon in regard to the charge of criminal force. Itnecessarily follows, I think, that as long as the order for acquittal standson that count, this evidence cannot be taken into account against theaccused for any purpose whatsoever in connection with the kidnappingcount. If then the conviction for kidnapping is to be established, it mustbe supported by evidence in the case other than that which must beregarded^as having already been rejected by the learned Magistrate.This represents the main difficulty which I have encountered in decidingthe present appeal.
The view I have taken is that the charge of kidnapping fails becausethe rest of the evidence is insufficient to establish the appellant’s guiltand it is not permissible to act upon Rita’s evidence as to what occurred•after she and the appellant took their seats together at the Regal Theatre.
(1950) A. C. 458 at p. 479.
GRATIAEN" J.—Ndllidh v. Herat
TJp to that point of time, no “ kidnapping ” ■within the meaning of section52 of the Penal Code was proved to have been committed. As to what hap-pened thereafter it is impossible to say because one’s vision is blurred, soto speak, by the impenetrable “ smoke screen ” set up by the order ofacquittal on the second count. When the smoke screen lifts, the partiesaxe observed returning together by bus to their respective homes in cir-cumstances which are by themselves consistent with the theory that Rita’sremoval from her parental custody had never been intended.
A person is not guilty of “ kidnapping ” a female child under 16 yearsof age unless he is proved to have “ taken or enticed ” her “ out of thekeeping of her lawful guardian Can it be said that a person necessarily“ kidnaps ” a young girl by merely taking her to a cinema show withouther guardian’s express consent but without the proved intention of de-priving the girl of her unrestricted freedom to return to her guardian’sprotection whenever she chose to do so? I do not think so. It seems to methat in such a case the girl has not, even temporarily, left her mother’s“ keeping Where a minor leaves the immediate custody of his law-ful guardian for a temporary purpose he must be deemed to be still in theguardian’s keeping (Batanlal on Grimes, 16th Edition, page 855), and thecorrect view is that the relationship of guardian and child suffers nobreak in its continuity so long as there is not interference with the child’sopportunity of returning to the guardian. Although Rita’s mother wasabsent at the time, Rita remained in her mother’s “ keeping ” whenshe first met the appellant near the Church—and there is no proofthat she did not so remain when she was a passenger in the bus ora guest at the “ Buriyani Shop ” and later at the cinema. The offenceof kidnapping would have been complete if she had been forced orenticed away for an improper purpose. But this vital part of the casefor the prosecution has not been established by evidence on which itis permissible to act. As the case now stands, I am logically compelledto hold that the offence of kidnapping has not been made out becausethe person of the minor Rita has not been proved to have been.“ transferred from the custody of her guardian into the custody of somaperson not entitled to her custody ”. (Gurdit Singh v. Emperor, A. I. 12-(1916) Lahore 230). I agree that Rita’s so-called “ consent ” to her allegedkidnapping would be immaterial. (12. v. Booth 1). A child cannot validlyconsent to the substitution of some other person’s control for the controlwhich is exercised over her by her lawful guardian. But, apart from theissue of consent, the accused must be acquitted because “ kidnapping ”—involving an even temporary severance of parental control—has notbeen established.
I allow the appeal and quash the conviction on the charge of kidnappingbut I feel constrained to say that my order would have given me greatersatisfaction if I were convinced that the appellant is in fact innocent ofboth offences which were framed against him at the trial. If ever therewas a criminal proceeding which, by reason of the gravity of the chargesand the intrinsic difficulties of the case, called for a preliminary investi-gation before committal and trial, this was one. It seems to me that the
(1872) 12 Cox 231.
Perera v. Amerasinghe
Magistrate acted unwisely in exercising his discretion to dispose of thecase summarily. I had at one stage considered whether I should quashthe proceedings and order a fresh inquiry to be held under Chapter 16 ofthe Criminal Procedure Code. But Mr. Perera has pointed out that thereare many infirmities in Rita’s evidence, and in all the circumstances I donot think it would be right to place the appellant “ in peril ” for a secondtime after the lapse of many months. The appellant is acquitted.
K. NALLIAH , Appellant , and P. B. HERAT ( Inspector of Police ) Respondent
GRATXAEN J.—Nalliah v. Herat