Lionel if. OIC, Meetiyagoda Police
LIONEL AND OTHERS
v.'. OFFICER-IN-CH ARGE, .
MEETIYAGODA POLICE STATION
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND BANDARANAYAKE; J.
CA 62B – 631/78 – M.C. BALAPITIYA – 62797.
FEBRUARY 19, 1985.
Criminal Law – Kidnapping and-abduction – Penal Code a. 354 and s. 366 – Errorsand omissions in the charge – Mischief – Misjoinder of charges.
The accused were charged on Count T with committing an offence punishable unders. 356 of the Penal Code in that they 'kidnapped' one Amolis Silva. On Count 2 the.accused were alleged to have committed mischief by causing damage to the house.
Amolis Silva who was 56 years old was on 29th May 1970 about 8.30 p.m. enticed toleave his house and forcibly removed in a car from,his house in Meetiyagoda by the 1stto 4th accused. The car proceeded some distance and then the 1st to the 4th accusedgot down from the car and the 5 th and 6th accused and one Kotagala Baas (not anaccused) got in. After the car had proceeded many miles, Amolis Silva was taken to ahouse and kapt tied to a bed inside a room for several days in solitary confinement. Hewas assaulted by Kotagala Baas and others. On 2nd July 1870 he was put into a caragain and taken some distance and left on the road. With the help of passers-by he wasable to find his way to the Kuliyapitiya.hospital.
In the meantime on 29th June 1970, about 10 minutes after the removal of AmolisSilva, his house was stoned and his daughter Daya Kumari complained of the forcibleremoval of her father and the stoning of. the house to the Meetiyagoda Police on diefollowing morning..; >
On 21.8.1970 the.Police filed plaint in the English language. After trial the Magistratefound the i st to 6th accused guilty on Count 1 but acquitted them on Count 2. The 7thaccused was found guilty under Count 2 and not guilty under Count 1. -;
It was contended on behalf of the accused that as the alleged kidnapping was not fromSri Lanka and not of a person under 14 years of age the offence of kidnapping could nothave been committed Further in 'abduction-the purpose should be to'secretly andwrongfully' confine the'person. This element too was not averred in the charge. Furtherthere was a misjoinder pf charges and the nonjoinder! of Kotagala-Baas affects the1credibility of Amolis Silva and is prejudicial to the accused.
(11 In the context of the present case 'kidnapping' is stealing a minor out of the lawful,guardianship without the guardian's consent. Abduction is the wrongful leading*away of any person. ’The former is essentially an offence concerning minors
• Sri Lanka Law Reports
 2 Sri L. ft
involving deception of the guardian. The latter includes as an ingredient, deceptionof the victim who can be any person including a minor and also carries an elementof secrecy.
fn the instant case the penal section referring to abduction has been correctlystated although the English word 'kidnapped' has been used. Sufficient particularshad been given and the evidence establishes the offence of abduction. Any error instating the offence or omission, to set out particulars has not misled the accusedand no prejudice has been caused to them.
The non-joinder of Kotagala Baas caused no prejudice to the accused nor does itaffect the credibility of Amolis Silva who is not responsible for the conduct of theprosecution.
There was no evidence that the 7th accused came to the house with the others andenticed Amolis to leave the house. The stoning incident had taken place about tenminutes after the abduction of Amolis Silva. Hence the joinder of charges on thefooting of a continuing transaction is bad and accordingly the conviction of the 7thaccused on Count 2 cannot be sustained.
J ' J
APPEAL from the Magistrate's Court of Balapitiya.
E D. Wtckramanaike for 1st and 2nd accused-appellants.
H. L. da Silva, P.C. for 3rd and 4th accused-appellants..
5. Sivarasa for die 5th and 6th accused-appellants.
Rohan Gunapala for the 7th accused-appellant.
A WickremariayakB. S.C. for the State. ■
This is an appeal from the Magistrate's Court against the convictionand sentence of the accused. The facts relied upon by the prosecutionreveal that on the 29th of May, 1970, one Amolis Silva was forciblytaken away from his house in Meetiyagoda at about 8 30 p.m. by the1 st to 4th accused who had come to the home, spoken to him sayingthat Ns boutique was being broken and when he came out carried himinto a car and taken him &way. Along the way the car was stopped andthe 1st to 4th accused got down from the car and the 5th and 6thaccused got into the car with one Kotagala Baas and tnereafter theyproceeded for many miles. Arnolis Silva says that he was taken to aJiouse, taken into a room and tied to a bed and was kept in that roomfor several days without food or water and on the 2nd of July 1970 he
CALionel v. QIC, MeetiyagodaPolice (Bandaranayake, J)37
was put into a car again and taken.some distance and left on the road.With the help of passers-by he was able to find his yyay to the hospital.It was the Kuliyapitiya Government Hospitaland he was treated and hereturned home to Meetiyagoda. In the meantime, on the 30th of May.1970 Arnolis Silva's daughter, witness Daya Kumari had given the firstinformation to the Meetiyagoda Police which information wasproduced in the case marked PI. She corroborates her'father inregard to the circumstances under which; he was-forcibly removedfrom the house. She also said that about 10 minutes later her housewas stoned and she fled into the jungle and when she returned to thehouse the following morning she found it damaged and she then wentto the Police. Upon, these,facts;and circumstances the Police filed aplaint on 21.8.70. .1
The plaint is in the English language and alleges in Count 1-thatArnolis Silva was ‘kidnapped’ by<the accused, an offence punishableunder section 356 of the Penal Code. On Count 2 it is alleged that theaccused committed mischief.by causing damage to the house. – -.
.’f J -w
At .the hearing of this appeal learned Counsel for, the aiopejlants.whowere the 1st to the 7th accused , raised, two matters of law.-The, firstmatter raised was to the wording of the plaint. It was submitted that'kidnapping' in law if not from Sri Lanka must be of a minor under; 14years of age out of lawful guardianship. It was submitted that thecomplainant was nofa minor andtherefore the offence.charged couldnot have been committed^'In these circumstances the charge wasbad.
It was also submitted by learned Counsel for the appellants thatunder section 356 of the PenaL Code the purpose should be to'secretly and wrongfully' confine a ,person and that that element of'secrecy' was not averred in. the. charge. If at all the proper chargeshould have been one of abduction. –
This matter of law was indeed raised at the trial before the learnedMagistrate. He hejd that although the plaint which has been filed inEnglish arid the word 'kidnap' has been used, the Sinhala translation ofthe word 'kidnap' would be * Oftyd asta ca® * which' also meansabduct' and also that in any event, the section under which the act ispunishable, had been correctly stated as s.,.356 and that in thesftcircumstances no prejudice has been, caused to the accused.
Sri Lanka Law Reports
(1985) 2 Sri L. R.
Learned Counsel for the appellants have strenuously arguedthat thecha'rge’as framed is fundamentally bad in law and that no attempt hasbeen made to amend it?at the trial and consequently it vitiates the-trial.
^ Learned, State Counsel on the other hand, submitted that theSinhala translation of the English charge set out the position correctlyand.that in any event the accused have denied the charges completelyand therefore no prejudice has been caused.to any of them one way orthe other and that the Penal section .has been correctly stated in thecharge..
'Kidnapping' from lawful guardianship is a.substahtive offence madepunishable by s. 354. Abduction is an ancillary act applicable td anyperson including a minor but not punishable by itself.' It may be criminalwhen done with'one of the ingredients specified in the followingsections 355 to 358 and s. 360. In the present context 'kidnapping'is stealing a minor out of the lawful guardianship without the guardian'sconsent. Abduction is the wrongfully leading away of any person. Theformer is essentially an offence concerning minors involving deceptionof the guardian. The latter includes as an ingredient, deception of thevictim who can be any person1 including a minor. *
* We have the following facts in the instant case!•
A plaint filed on 21.8.70 was in the English language and• contains the word -'kidnap' punishable under s. 356 of the Penal
Code. At that time the provisions of Article 11 (1) of theRepublican Constitution of 1972 did not apply.
Evidence was led on 31.1.71 for the purpose of consideringassuming jurisdiction to try the case summarily. All the accusedwere present and were represented by counsel.
The compainant Arnolis Silva testified in their presence. He gave hisage as 56 years and he had concisely stated what happened to him on29th May, 1970. His daughter Daya Kumari also gave evidence. Uponthis, evidence the learned Magistrate assumed jurisdiction andproceeded to hear the case summarily upon the charges aforesaid. Itwas therefore quite dear, to the accused as well as to their Counselthat tjie complainant-was not a minor. The learned Magistrateassumed jurisdiction on 31.1.71 and the trial was postponedthereafter many tiriresand was taken up for hearing only on 11.8.77.flenty of time was available for the defence to meet the complaint ofArnolis Silva and the accused were throughout represented by Counsel.
CALionel v. QIC, Meetiyagoda Police (Bandaranayake, J.)33
In these circumstances it is my opinion that; .any error in stating theoffence or omission to set out particulars in these circumstances hasnot or have not misled the accused and that no prejudice has beencaused to them.
Sufficient particulars have been given of the offence committed inthe charges as framed. It is also to be observed that the evidence ledto assume jurisdiction refers to the fact that Arnolis Silva had beenremoved in a car with his eyes blindfolded and he had been kept insolitary confinement, tied to a bed in a room for several days at a placeapproximately 70 miles away from his-home. The element of secrecytherefore was quite apparent. In these circumstances I am of the view,that this matter of law raised is without merit.
I have also to observe that the Sinhala translation of the chargerelied upon by State Counsel is -that of the learned Magistrate setdown by him in the course of his judgment dealing with-the point oflaw taken and cannot therefore in my consideration affect the point oflaw aforesaid raised at the hearing of this.appeal.''
The other matter of law raised by Counsel for the appellants wasthat the complainant Arnolis Silva's ^evidence taken on 31.1.71 toassume jurisdiction stated that one Kotagala Baas was presentassociating with the accused in the commission of-the-.crime. Thewitness-had taken-up this position: even in the first statement that hemade to the doctoral the Kuliyapitiya-Government Hospital on 2.6.70at 5 p.m. There he has told the doctor that he was assaulted byKotagala Baas and others. The witness has consistently alleged thisfact in his evidence at the trial-*
Counsel for the appellants submits’that Kotagala Baas was notmade an accused and this has prejudiced the defence as theprosecution has given no explanation for,-not charging him. Therefore,Counsel submits that the.-credibility of; the witness Arnolis Silva isaffected as either Kotagala Baais had a foolproof alibi or the Policewere bribed and the Police have not said that he could not be found ;in these'circumstances ’Counsel invited' the Court to draw thepresumption of fact as likely to have happened namely that Arnolis isan unreliable witness.' ' .'
Counsel submitted that this was a natural inference which the Courtcould draw in the'circumstances of this case. I am unable to drawsuch an inference adverse to the witness Arnolis Silva on these facts.There has been no cross-examination of the Police witnesses in the
Sri Lanka Law Reports
[1965} 2 Sri L. R.
case in regard to this matter and the witness is not responsible for theconduct of the prosecution ; again, when Arnolis Silva's evidence isexamined intrinsically his evidence in regard to the 1st to the 4thaccused's conduct is corroborated independently by his daughter, hisevidence in regard to the involvement of the 5th and 6th accused hasbeen consistent and stands uncontradicted ; so when looked atintrinsically it does not stand to reason that the witness shouldimplicate some person when he could equally well have stated thatother persons, participated .who were not known to him or whosenames.were not known to him. I am of the view, that it would be purespeculation to exercise the Court's discretion to draw an inferenceadverse to the credibility of the witness in these circumstances.
In these circumstances, I am of the opinion that the second point oflaw taken above is also .without merit.
Arnolis Silva's complaint vyas that he was assaulted when beingabducted. The medico-legal report produced in the case is to theeffect that there were no external injuries oh him when he wasexamined at the hospital on 2.6.70. Appellants' Counsel made a pointof this. It was also the evidence in the case that several days hadelapsed since the alleged assault to the time of the examination. Theaccused have ‘given evidence and they have merely denied .thecharges. The learned Magistrate has .considered the evidence led inthe case and the submissions made by Counsel and has believed theprosecution witnesses and come to a finding that the 1 st to the 6thaccused are guilty on count 1 and not guilty bn the other count ofmischief, as there was no evidence led before him against theseaccused in respect of that charge.
As far as the 5th and 6th accused are concerned their conductamounts to taking over the abduction of Arnolis Silva who was in thecar and their convictions are justified upon an acceptance of thatevidence.■ ■'
‘ __ In my view, it is not appropriate to disturb, the .findings of the learnedMagistrate as regards the 1 st to 6th accused and their convictionsand sentences are affirmed. As far as the 7th accused is concerned,the learned Magistrate has acquitted him of the 1st count butconvicted him on the 2nd count of mischief for causing damage toArnolis Silva's house. The acquittal on count 1 shows that theevidence does not warrant the view that the 7th accused’had joined
CALionel v. QIC. Meetiyagoda Police IBandaranayake, J.)
the 1 st to the 6th accused in their criminal conduct. In fact there is noevidence that the 7th accused came to the house with the others andenticed Amolis to leave the house. The question of joinder of chargestherefore on the footing of a continuing transaction is an issue in thecase. In the absence of a charge of conspiracy or of unlawful assemblythe evidence itself does not disclose a continuing transaction.
The witness Daya Kumari has said that the stoning of the houseoccurred about 10 minutes after her father was taken away. The factsare therefore consistent with there being two unconnectedtransactions where a particular group of people had decided to abductArnolis unknown to others who may have gathered around the houseof Arnolis to damage it due to pdlitical rivalry and would have damagedit whether or not Arnolis was inside it. The conviction of the 7thaccused on count 2 therefore cannot be sustained. I, therefore, setaside the conviction and sentence of the 7th accused on count 2 ofthe charge The appeal of the 7th accused is accordingly allowed. Theconvictions of the 1 st to the 6th accused and the sentences imposedon them are affirmed and their appeals are dismissed.
P. S. DE SUVA, J. – I agree.
Appeal of 1 to 6 accused-appellants dismissed.
Appeal of 7th accused-appellant allowed.
-LIONEL AND OTHERS v. OFFICER-IN-CHARGE MEETIYAGODA POLICE STATION