PIYASENA AND TWO OTHERS
COURT OF APPEAL.
ABEYWARDANE. J.. JAYALATH. J. AND WUETUNGA, J.
C. RATNAPURA 62/80.
M.C. EMBILIPITIYA 19122.
JULY 09 AND 10, 1986.
Criminal Law-Charge-Several acts of rape in two different places-Is charge bad forduplicity?-Corroboration-ldentification.
The prosecution case was that the prosecutrix was raped by the three accusedpersons-each three times once in the prosecutrix's own house in the presence of hermother and twice elsewhere where there were no witnesses. Each of the accused wasindicted on a single charge of rape and after trial the jury found each of the accusedguilty of rape. It was contended that the charge was bad. the corroborative material didnot cover all three acts of rape and the accused being at a loss to know of which act ofrape they were convicted, were prejudiced in their defence and the identification paradehaving being held the evidence on the identity of the accused should not have beenaccepted.
Although each accused had committed three distinct acts of rape these actsconstituted a series of acts in one continuing transaction. It was one activity althoughthe activity involved more than one act. Hence it is legitimate to indict each accused in asingle charge of rape. It was not necessary to have a separate count for each act ofrape. Sufficient particulars had been given in the charge and the charge was not bad forduplicity.
The Judge in his summing up had sufficiently explained the law relating tocorroboration including the circumstances under which a jury can convict in spite of theabsence of corroboration of the victim's evidence.
The identification of the accused by the prosecutrix was acceptable and the verdictof the jury was reasonable.
Cases referred to:
Director of Public Prosecutions v Merriman – (19 73) 56 Cr. Appeal Reports 756.775. 776.
Jamieson v. Priddle – (1971) 56 Cr. Appeal Reports 229. 234; (1972) W & R293. 298.
APPEAL from conviction in the High Court of Ratnapura.
Ranjith Abeysuriya with Athula Pathinayake for accused-appellants.
Nihal Jayasinghe, S.S.C. for Attorney-General.
Cur. adv. vull.
September 5, 1986.
The three accused-appellants N. T. Piyasena, K. T. Bandupala and P.P. Gunapala were charged on four counts as follows
That they did on or about the 24th October 1977 at
Mahagama within the jurisdiction of this court abductGoowandarage Karunawathie in order to have unlawful sexualintercourse and thereby commit an offence punishable undersection 357 of the Penal Code..
-That at the time and place aforesaid and in the course of thesame transaction you the first accused abovenamed didcommit rape on Goowandarage Karunawthie an offencepunishable under section 364 of the Penal Code.
That at the time and place of aforesaid and in the course of thesame transaction you the second accused abovenamed didcommit rape on Goowandarage Karunawathie an offencepunishable under section 364 of the Penal Code.
That at the time and place of aforesaid and in the course of thesame transaction you the third accused abovenamed didcommit rape on Goowandarage Karunawathie an offencepunishable under section 364 of the Penal Code.
Thus each of the accused-appellants were charged on two countspunishable under sections 357 and 364 of the Penal Code.
After trial .the jury returned an unanimous verdict of guilty on each ofthe counts against all the accused-appellants.
Each accused-appellant was ^sentenced to 5 years' rigorousimprisonment on count one and (the 1st, 2nd and 3rdaccused-appellants were sentenced) to 1 5 years' rigorousimprisonment on counts two, three and four respectively, by thelearned trial judge. The sentences against each accused-appellant'were to run consecutively, so that each accused-appellant would haveto serve a period of 20 years' rigorous imprisonment.
Before considering the submissions made by the learned Counselfouhe accused-appellants it would be necessary to state the facts ofthis case as briefly as possible.
Goowandarage Karunwathie stated at the trial that she was 18years of age at the time of the incident and living with her mother andfather at Mahagama, Embilipitiya. With them lived another boy by thename of Piyasena, who was a distant relation. The four of them hadgone to sleep at about 7 p.m. after their dinner on the 24th October1977. They lived in a small house which contained a small verandah, ahall and a kitchen. There was a door in front of the house and therewas also a door in the rear of the house.
On that day she and her mother slept near each other near thekitchen. Piyasena slept in the kitchen, Karunawathie said that she hadnot fallen asleep. She said that some time later she heard someoneknocking on the front door, and wanted the door to be opened. Hermother replied saying that she cannot open the door. The person whoknocked at the door then said that the door would be forced open ifshe did not open it.
She said that the door was then opened and three persons enteredthe house. Karunawthie said that Bandupala the 2ndaccused-appellant entered the house first, followed by the 1 st and 3rdaccused-appellants. She said that they were armed with clubs. Therewas a bottle lamp on a table alight, which she said one of the personshit with a club and broke into pieces.
The 1 st accused-appellant who had a club in his hand went towardsher father and took the pickaxe which was with her father. Thesepersons then tried to pull her out. She said that the inmates of herhouse on seeing what was happening raised cries. Her mother andfather were then assaulted by the 1 st and the 2nd accused-appellantswith clubs and pushed towards the kitchen, and threatened withdeath. Piyasena was assaulted by them with clubs and chased out ofthe house.
Karunawathie said that she was first put on the floor by the secondaccused-appellant, whom she identified as Bandupala, and thereafterlifted on to a bed which lay beside her. The 2nd accused-appellantthen attempted to rape her; but she said that he could not do so asshe resisted. The 2nd accused-appellant then called the 1staccused-appellant and having cast a remark told him that she wasresisting and was not yielding to his demands. Karunawathie said that■ she had struggled with the 2nd accused-appellant when he attemptedto rape her. The 1 st accused-appellant then threatened her and raisedher gown and raped her.
Karunawthie stated that after about 15 minutes the 1staccused-appellant released her and the 2nd accused-appellant cameand having raised her gown and raped her. After about 10 minutes the2nd accused-appellant released her and the 3rd accused-appellantcame and raped her in the same manner. The 2nd accused-appellantthreatened her father and mother and warned them that if they made acomplaint to the police about this incident they would kill both of them.The 1 st and the 3rd accused-appellants then went out of the house atthe request of the 2nd accused-appellant.
Karunawathie said that the 2nd accused-appellant then dragged herout of the house, having threatened her father. Before doing so hecollected a gown and an underskirt from a line and askedKarunawathie to wear it. She said that when she was taken out of thehouse she saw the 1 st and 3rd accused-appellants waiting outside.
When Karunawathie was being dragged out of the house she saidthat her mother followed her right up to the spill which was a littledistance away. The 2nd accused-appellant then put her on to a boat,and with the 1 st and 3rd accused-appellants rowed the boat towardsthe house of the 1 st accused-appellant. This house was situated in themidst of a jungle. Karunawathie said that she was led into the houseand the doors were locked. It was about 12 midnight when theyreached the 1st accused-appellant's house. There was no one elsethere.
Karunawathie said that the 2nd accused-appellant then put her on amatress which lay in the house and raped her. The 1staccused-appellant then raped her, followed by the 3rdaccused-appellant. After that the 2nd accused-appellant told her tosleep, but she could not sleep. She said that again at about 5 a.m. the2nd accused-appellant raped her forcibly in spite of her protests. Hethen left saying that he was going to the pola. Then 1staccused-appellant again raped her after the 2nd accused-appellantleft. The 3rd accused-appellant followed the 1 st accused-appellantand raped her again for the third time. Karunawathie said that thethree of them raped her in spite of her resisting them and raisingprotests.
The 1 st accused-appellant then went away saying he was going tothe pola. Karunawathie said that he tried to lock her inside his housebefore leaving for the pola, but she pushed the door and got out to thefront of the house and sat on the doorstep. The 1st and 2ndaccused-appellants had left for the pola whilst the 3rdaccused-appellant waited near her. The 1st accused-appellant thenreturned and took her towards the main road, and then to a boutiquewhere he got her some tea. On their return from the boutique at about7 a.m. they met the 2nd accused-appellant, who asked Karunawathieto accompany him to the house. Karunawathie said that she refusedto go. He threatened Karunawathie that he would take her to Mau Ara.and there kill her. Karunawathie replied that she felt dizzy and shecould not go anywhere. He then took her along a sandy road and againasked to come with him to Mau Ara, but she refused. She said thatwhilst she was being threatened she saw a jeep approaching towardsthem. The 2nd accused-appellant tried to drag her by the hand, butshe resisted and got away, and ran towards the jeep. The 2ndaccused-appellant ran towards the jungle which was on the right sideand fled when the jeep came near them. Karunawathie said that shewalked towards the jeep and she got into the jeep and waited with twopolice officers whilst two others searched the area for the 2ndaccused-appellant. The police officers however could not apprehendthe 2nd accused-appellant who had escaped.
Karunawathie-stated that she was then taken to the 1staccused-appellant's house by the police officers. Thereafter she wastaken to her house at Mahagama where her statement was recordedby the police. She said she was later examined by a doctor at thePallebedda Hospital.
Mr. Jayasekera,Judicial Medical Officer of the Pallebedda hospitalwho examined her on 25.10.77 found, four external injuries on herwhich were as follows:
Injury .No.. 1. was an abrasion behind the back of the chest. It was
3 1/2" wide.
Injury No. 2 was an abrasion on the left thigh 3 inches long.
Injury No. 3 was an abrasion on the left thigh. He could not describe, the size of this injury.
Injury No. 4. was a scratch by a finger nail, 1 inch long.
The doctor stated that injuries 1, 2 and 3 could have been inflicted
by a club. Injury No. 4 could have been inflicted by a finger nail.
The doctor also stated that there was a complete tear in the hymen.The tear was a recent one and consistent with Karunawathie's storythat she had been raped with force. He said that Karunawathie hadiost her virginity as a result of this injury.
Podi Menika. Karunawathie's mother in her evidence corroboratedKarunawathie's evidence that the 1st. 2nd and 3rdaccused-appellants entered their house on the 24th October' 1977'and raped Karunawathie in spite of the father, Karunawathie andherself raising cries and pleading with them not to harm Karunawathie.These incidents occurred in their house,, and in their presence. Shesaw her daughter being raped by the three accused-appellants fromthe kitchen in which she and her husband were kept confined.
Podi Menika also said that the three persons entered their house byforcing open the rear door. .She said that she had-refused to open thefront door when they knocked on itr She said she followed the threepersons who were dragging her daughter towards the spill after theyhad raped her in their house. On reaching the spill they got on to aboat and rowed away in spite of her protests. Podi Menika said thatshe made a complaint to the Embilipitiya police at about 7 a.m. (in themorning). She said she-was in a dazed condition at the time she madea complaint to the police.
Sub-inspector Wimaladasa said that on receipt of the complaint on25.10.77, he left with two other police officers and the complainantat about 8.15 a.m. They went by jeep towards the complainant'shouse. He made his observations at the house. The house consistedof a small verandah, a hall and a kitchen. There was a bed on the leftside of the hall which could be seen when one enters the hall from theverandah. The bed could also be seen from the kitchen. This bed wasshown to him as the one on which Karunawathie had been raped. Hesaid the front door had been intact but the zinc sheet in the rear doorhad been bent and dented. He said there was a bottle lamp near thebed, which had been broken to pieces.
S.l. Wimaladasa said that after he made his observations he and theother police officers went in search of the accused-appellants. Theywent to the 2nd accused-appellant s house which is about 150 yardsfrom Podi Menika's house, but there was no one there. They then lefttowards the Young Farmers Colony on receipt of some informationand when proceeding along the road Karunawathie came towards thejeep and told them what had happened. Karunawathie was wearing ablack gown with red spots on it. She also had a parcel in her hand'which had an underskirt in it. These articles and another gown whichshe had worn in the house were produced by him as PI, P3 and P4.
S.l. Wimaladasa said that when proceeding along the road as they 0saw Karunawaihie come towards them they saw someone, whomthey later came to know was the 2nd accused-appellant. He ran awayinto the jungle. S.l. Wimaladasa and another officer searched for him.but failed to apprehend him as he had escaped.
He then went to the 1st accused’s house where Karunawathie hadbeen taken to and raped once again. He said that the door of thehouse had been left open but nobody was there. Karunawathieshowed him a mattress lying on the floor. Karunawathie had told himthat this was the mattress on which the accused-appellants hadcommitted rape on her the second time. Wimaladasa stated that afterKarunawathie's statement was recorded in her house she wasproduced before the Judicial Medical Officer and examined by him.The productions were duly sealed and sent to the Government Analystand his report was produced as P5. In his report the GovernmentAnalyst has stated that he traced human blood and semen on one ofthe gowns and underskirt worn by Karunawathie; and there was alsosemen found in the other gown worn by Karunawathie.
After the evidence of the police officers the case for the prosecutionwas closed. None of the accused gave evidence or called anywitnesses to give evidence on their behalf.
In the course of the cross-examination on behalf of the 2ndaccused-appellant it was suggested that Karunawathie had known the2nd accused-appellant prior to this incident, and that she hadconsented to have sexual intercourse with him. which she denied.Karunawathie was cross-examined in great detail by the defence, andthroughout she maintained that she identified the 2ndaccused-appellant Bandupala. whom she had seen before. She saidthat she came to know the 1st and 3rd accused-appellants and theirnames in the course of the incident as they were called by each otherby their names. She said that she came to know and identify them bytheir faces and their names. There was some contradictions markedby the defence in cross-examination of Karunawathie.
The main submissions of the learned counsel for theaccused-appellants were:-
(1) that upon the facts disclosed by the evidence there wereseparate acts of rape alleged by the prosecution, first mKarunawathie's house, and thereafter at the 1 s'
accused-appellant's house. He contended that there shouldhave been separate counts for each act of rape which he saidwas a distinct offence.
He further submitted that the question of corroboration wouldarise with regard to each distinct offence of rape alleged. Hestated that particularly in regard to the rape alleged in firstaccused-appellant's house there was no corroboration.Considering the facts of this case, he said it is difficult to discernof which act of rape the accused-appellants were found guiltyby the jury. Karunawathie had stated in her evidence that therewere nine acts of rape committed on her by theaccused-appellants.
The learned counsel for the accused-appellants furthersubmitted that there had been no identification parade. He alsosubmitted that the mother had not identified the 1st and 3rdaccused-appellants and did not give their names correctly.
In considering the first submission made by the learned counsel forthe accused-appellants that there should have been separate counts inrespect of each act of rape it is necessary to advert to the facts again.The three accused-appellants were alleged to have.rapedKarunawathie at her house from 10 a.m. on the night of the 24thOctober 1977 and then taken her away by force immediately afterthese acts were committed. She was again raped by them in the 1staccused-appellant's house. The rape in Karunawathie's house, theabduction and again the rape in the 1 st accused-appellant's house arein my view all a series of acts in one continuing transaction and theprosecution is entitled to charge the accused-appellants’on separatecounts for each act of rape, or in one count as one continuing act ofrape. Lord Morris of Borth-y-Gest in the case of Director of PublicProsecutions v. Merriman (1) supports this view, and'States in hisjudgment as follows:
"It is furthermore a general rule that not more than one offence isto be charged in a count in an indictment. By Rule 4 of Schedule I tothe Indictments Act 1915 (now repealed) it is provided as follows:'A description of the offence charged in an indictment or wheremore than one offence is charged in an indictment, of each offenceso charged shall be set out in the indictment in a separate paragraphcalled a count'. The question arises-what is an offence? If 'A'attacks 'B', and in doing so stabs 'B' five times with a knife, has 'A'
committed one offence or five? If 'A' in a dwelling house of '8'steals ten different chatties, some perhaps from one room andsome from others, has he committed one offence or several? Inmany different situations comparable questions could be asked. Inmy view, such questions when they arise are best answered byapplying common sense and by deciding what is fair in thecircumstances. No precise formula can usefully be laid down but Iconsider that clear and helpful guidance was given by Lord Widgery.C.J. in a case where it was being considered bad for duplicity. (SeeJamieson v. Priddle (2)). I agree respectfully with Lord Widgery thatit will be legitimate to bring a single charge in respect of what mightbe called one activity even though that activity may involve morethan one act. It must of course depend on the circumstances. In thepresent case it was not at any time suggested, and in my view couldnot reasonably have been suggested, that count one was open toobjection because evidence was tendered that the respondentstabbed Mr. Parry more than once."
I am of the view that sufficient particulars of the offence have beengiven in the Charges framed and he could not have been prejudiced inthe formulation of his defence in this case.
In this case as submitted by the learned Senior State Counsel therewere several acts of penetration by each of the accused-appellants incommitting the offence of rape in the course of the same transaction.It may also be stated that no objection was made by the defence atthe trial that the indictment was bad for duplicity, and in my view thesubmission that the charge is bad for duplicity must necessarily fail forthese reasons.
The second submission made by the learned counsel for theaccused-appellants was that there is no corroboration in respect ofevery act of rape alleged against each of the accused-appellants.
A perusal of the summing up in this case clearly indicates that thelearned trial judge has taken great pains to explain to the jury the lawon the requirement of corroboration in an offence of rape and thecircumstances in which 'a jury can convict in spite of the absence of_corrobdration of the victim's evidence. The learned trial judge haswarned the jury adequately of the danger of convicting an accused onthe uncorroborated testimony of the virtual complainant in a case of
♦ rape. In my view the jury has been adequately directed by the learnedtrial judge on the law regarding corroboration of the complainant'stestimony.
Another contention of the appellants was that no, identificationparade was held. It was submitted that Podi Menika had not identifiedthe 1st and 3rd accused-appellants by their names, as the names shegave were incorrect. But as stated earlier Karunawathie who had beenaltogether nine hours with the three accused-appellants from about10 a.m. on the night of the 24th October till about 7.30 a m. on themorning of the 25th October said that she did identify them by theirfaces and. their names the accused-appellants had called each other.Both Karunawathie and Podi Menika said that they identified 'Bandu'the 2nd accused-appellant whom they had seen before and who lived1 50 yards away from their house. These are all questions of factwhich were left to the jury to decide..
.After due consideration of all the submissions of the learned counselfor the' accused-appellants and the Senior State’ Counsel and the. totality of the evidence led in this case, I do not think that this is a casein which it could be said that the verdict of the jury is unreasonable.
For the above reasons I affirm the 'conviction of each of theaccused-appellants.
There is no doubt that the crime committed by theaccused-appellants is a heinous crime which requires deterrentpunishment. However considering the age of the accused-appellantsand the fact that they have not had a previous record of crime and thefact that they have served a period of 3 years and 7 months in remandcustody after their convictions I am of the view that the ends of justicewill be met if each of the accused-appellants are sentenced to 5years' rigorous imprisonment on count 1 , the 1 st accused-appellantto 10 years' rigorous imprisonment on count 2. the 2ndaccused-appellant to 10 years' rigorous imprisonment on count 3.and the 3rd accused-appellant to 10 years' rigorous imprisonment oncount 3. The sentences against each accused-appellant to runconcurrently.
Subject to this variation in the sentence the appeal is dismissed.ABEYWARDENA, J. – I agree.
WIJETUNGA, J. – I agree.
2-PIYASENA AND TWO OTHERS v. THE ATTORNEY-GENERAL