COURT OF APPEAL.
HECTOR YAPA, J. (P/CA)KULATTLAKE JC.A. 27/99.
H.C. AMPARA: HC/AMP. 292/9915th, 20th, 21st SEPTEMBER 2000
Penal Code – S. 364 – Rape – Test of spontatnety and contemporaneity -Delay in making complaint – Demeanour and deportment -Discrepancies and inconsistancies in the evidence – Accusedsilent – Inference to be drawn – Evidence Ordinance S.3, S.8(2) – Fact in issue-Proof
The Accused – Appellant was convicted of the offence of rape andsentenced to a term of Imprisonment and a fine.
In appeal it was contended that –
There was a delay In making the complaint;
That there was an attempt by the prosecutrix to hide the fact that, theaccused was a person known to her for sometime and that the evidenceof the prosecutrix was per se contradictory.
If there is a valid reason or explanation for the delay and if the trialJudge is satisfied with the reasons and explanations given, no trial Judgewould apply the test of spontaineiy and contemporaneity and reject thetestimony of a witness in such circumstances.
'delayed witnesses evidence could be acted upon if there were reasons toexplain the delay.'
A careful reading of the evidence elicited from the prosecutrix revealsthat she had in fact brought to light her means of knowledge of theAccused-Appellant.
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Per Kulatilake J.,
"When there Is a case to answer on the prosecution evidence if theAccused – Appellant remains silent, Court may regard the inference fromhis failure to testify as, in effect a further evidential factor to support thecase”
Discrepancies and inconsistencies which do not relate to the core ofthe prosecution case, ought to be disregarded especially when allprobabilities factor echoes in favour of the version narrated by a witness.
APPEAL from the High Court of Ampara.
Cases referred to :
Q vs Pauline de Croos – 71NLR – 169 at 170.
la. Talpe Liyanage Manatunga vs. A. G. – CA 47/98, HC Galle 1855.
Bharwada Bhoginbhai Hiijibhai vs. State of Gujarat – 1983 AIR SC753 at 758.
A. G. vs. Viswalingam – 47 NLR 289.
In Re. Anthony alias Bathavatsalu- 1960Cr.LJ927(Vol.61,CN326).
Edrick de Silva vs. Chandradasa de Silva – 70 NLR 169 at 170.
Kankanam Aratchilage Gunadasa vs. Republic – CA 121/95 – HCChilaw 71/95.
King vs. Themis Singho – 45 NLR 378.
King is Abeyratne – 47 NLR 232
Regina vs. Cowan.
Regina vs. Gayle.
Regina vs. Riccicard – 1996 QBD 373.
Nalin Ladduwahetty for Accused – Appellant.
Suhada Gamlath, Senior State Counsel for the Attorney General.
Cur. ado. visit.
October 23, 2000.
The accused-appellant was convicted by the High CourtJudge of Ampara sitting without a jury of committing the of-fence of rape on Vijitha Priyangika Kumari on 12.2.1995 an
Bandara v. The State
offence punishable under Section 364 of the Penal Code. Hewas sentenced to eight years' rigorous imprisonment and inaddition to a fine of Rs. 2000/-with a default term of oneyear's imprisonment. The accused-appellant has appealedagainst the conviction and sentence.
The facts briefly stated are as follows: The prosecutrixVijitha Priyangika Kumari was 13 years of age at the time shewas ravished. She came from a broken home. Her father wasliving in separation from her mother. Her motherand elder sister were factory workers. It transpired in thesubmissions of learned counsel that the acused-appellantwas 26 years of age and was employed at the InsuranceCorporation at the time he was alleged to have committed thecrime.
The prosecutrix testified that the accused appellant wasknown to her. On 12.2.95 she was on her way to the nearby stream to have a bath and for some washing as well. Mid-way, she met the accused-appellant and had engaged in aconversation for a short while. As she was about to proceedtowards the stream the accused-appellant had dragged herto the woods nearby and despite her resistance had sexualintercourse with her. Thereupon he had seen the brother ofthe prosecutrix coming towards them and he had releasedher from his grip. He had threatened both the prosecutrixand her brother with death in the event they informed aboutthe incident to anyone else. Thereafter on 22.2.95 she madea complaint to the police.
Brother of the prosecutrix Ajith Thushantha who was 10years of age then, testified before the High court that when hewas bathing in the stream at the behest of his loku ammahe went in search of his sister and had seen the accused-appellant positioned himself on the body of his sister whowas lying on the ground. As he saw them the accused-appellant had released his sister and thereupon had threat-
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ened both of them with death if he were to tell about the inci-dent to anyone else.
Police Sergeant Ratnasiri Arunadasa testified to theinvestigations carried out by the police. The complaint of rapehad been lodged by the prosecutrix on 22.2.95. He hadrecorded the statement of her mother Seelawathie as well atthe police station and taken into custody the clothes wornby the prosecutrix at the time of the incident. The accused-appellant had been present in the police station at the pointof time.
The medical evidence was adduced by Dr. ChandrawansaJayasinghe. He has stated to Court that he had observed asomewhat old tear of the hymen at 7 o’clock position whichwas consistent with having had sexual intercourse. When thelearned trial Judge called upon the accused-appellant for hisdefence he had opted to remain silent.
The point which is at issue in this appeal is whether theevidence in the case reveals that there was consent on thepart of the prosecutrix in having sexual intercourse withthe accused – appellant.
There are two main grounds adverted to by thelearned counsel for the accused-appellant in support ofhis proposition of consent:-
that there was a delay of 10 days in making thecomplaint of rape against the accused – appellant.
that there was an attempt by the prosecutrix to hidethe fact that the accused-appellant was a personknown to her for sometime.
It was common ground that the prosecutirx had madeher complaint to the police on 22.2.95. It was submittedby counsel that it was while in the process of making acomplaint against her mother for beating her that she had
Bandara v. The State
come out with the story that she was ravished by theaccused-appellant.
Learned counsel argued that this Court should applythe Test of Spontainety and Contemporaneity and reject herstory. We have very carefully considered the evidence givenby the prosecutrix at the trial. According to the prosecutrixand her brother Ajith Thushantha, soon after the incidentthe accused – appellant had threatened to kill them and throwthem to the stream on their way back home from school inthe event they divulged the incident to anyone. Throughouther evidence this factor (threat) echoed again and again andfurther this item of evidence has come before the trial Courtunimpugned and unchallenged. Further she stated to courtthat most of the time she was alone in the house for thereason that her father was living elsewhere and her motherand elder sister were working at the factoiy to earn theirliving. In addition she had entertained fear that she wouldnot be permitted to go to school by the elders had shecomplained about the incident. In fact she had attended schoolonly for one day after the incident. Further one cannot forgetthe fact the prosecutrix and her brother were children oftender years at the time of the crime. If there is a valid reasonor explanation for the delay and if the trial Judge is satisfiedwith the reasons or explanation given, no trial Judge wouldapply the Test of Spontaneity and Contemporaneity andreject the testimony of a witness in such circumstances. Inthis case it was never suggested to the prosecutrix incross-examination that her evidence was concocted orfabricated on account of the ensuing delay in making her com-plaint to the police. In Queen vs. Pauline de Crossf11 at 180Justice T.S. Fernando observed that a delayed witness's evi-dence could be acted upon if there were reason to explain thedelay.
It has transpired in cross-examination that the mother ofthe prosecutrix had beaten her with a piece of firewood
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and when her father took her to the police station to lodge acomplaint against the mother, the prosecutrix had comeout with the story that she was ravished by the accused-appellant. In fact the learned trial Judge wisely had himselfcleared this point, (vide page 60 of the record). It is pertinentto note that at the time she made complaint, for someunknown reason the accused-appellant himself had beenpresent at the police station.
On a perusal of the judgment we find that the learnedtrial Judge has considered all these relevant material beforeaccepting the explanation afforded by the prosecutrix forthe delay. Hence we see no merit and substance in thesubmission of learned counsel that the prosecutrix's delay inmaking her complaint to the police should be attributed toconsent on her part. It is to be observed that the unimpugneditem of evidence to the effect that soon after the commissionof the crime the accused-appellant had threatened theprosectix as well as her brother with death in the eventthey divulged the incident to anyone would amount to"conduct, influenced by the fact in issue" in term of Section 8(2) of the Evidence Ordinance.
Adverting to the second ground urged by the learnedcounsel for the accused-appellant he submitted to Court thatat the very commencement of her evidence the prosecutrixhad attempted to impress upon the trial court that shecame to know the accused-appellant on the day prior to theincident namely, on 11.2.95. Further the learned counselreferred to the fact that at a subsequent stage in her evidenceher position had been that she knew the accused-appellantbefore because he used to visit her uncle and later stated incross-examination that the accused-appellant was a friend.Thus the learned counsel urged that the learned trial Judgeshould not have relied upon her evidence as it was per secontradictory and therefore unsatisfactory on a material point.Albeit a careful reading of the evidence elicited from theprosecutrix reveals that she had in fact brought to light her
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means of knowledge of the accused-appellant. She had seenhim on her way to school. The accused-appellant was a friendof her uncle (podi mama) who was living with her grand mother.She had seen the accused-appellant in that house on a fewoccasions. The day prior to the incident there had been aparty at her grand mother's house to celebrate her uncle’swedding. In fact the accused-appellant was related to heruncle's wife. At the party they came to know each other well,so much so that in her evidence she referred to the accused-appellant as "Sham Mama". Her younger brother AjithThushantha corroborates her evidence on this point. He alsoreferred to the accused-appellant as "Sham Mama”.
It is necessary to emphasise the fact that the learned trialJudge had the benefit of observing the demeanour anddeportment pf this witness which is an all important factorand having observed the witness the learned trial Judge hasupheld her testimonial trustworthiness and veracity of herevidence. In this regard vide the decision of Justice F.N.D.Jayasurlya in Talpe Liyanage Manatunge vs. The Attorney-General11^.
The learned counsel also made reference to certaindiscrepancies and inconsistencies in her evidence, to wit, thetime at which she made her complaint to the police on 22.2.95,the period she spent at the hospital and also to a contradic-tion marked as P1. The learned trial Judge thought it fit todisregard these trivial discrepancies and inconsistencieshaving regard to the demeanour and deportment of theprosecutrix. Our courts have laid down the principle that thediscrepancies and inconsistencies which do not relate to thecore of the prosecution case ought to be disregardedespecially when all probabilities factor echoes in favour of theversion narrated by a witness. This position is vouchsafedby Justice Thakkar in Bharwada Bhoginbhai Hiijibhai vs.The State of Gujeratf21 at 755 and Justice Cannon inAttorney-General vs. VisuwalingamPK
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The learned counsel also commented upon some instancesin her evidence which indicate that there was somereluctance on her part to come out with her story beforethe trial court. In this regard the learned Senior State Coun-sel submitted that unlike in the western countries victims ofrape in the Asian Societies are often thoroughly unwilling tocome forward promptly and disclose the details of the crimecommitted against them. To substantiate his submission thelearned Senior State Counsel engaged the authority ofRe Anthony alias Bakthauatsalul4i where Anantanarayanan,J made the following observation:
"On account of the stigma which gets attached afterthe commission of the offence of rape and which wouldseriously jeopardise the chances of getting married in decentcircumstances, the victims and. their relatives are oftenthoroughly unwilling to come forward promptly with reportsof the offences".
We are in agreement with that submission of the learnedSenior State Counsel. However on a perusal of the evidence ofthe prosecutrix we find that once she had made up her mindto speak out she had given a vivid description of how she wasravished by the accused – appellant. Before dragging her tothe shrub jungle nearby, the accused-appellant had engagedhimself in a conversation with the prosecutrix which gives aclue to what his intentions were. He had inquired from herwhether there was anybody in her house and the whereaboutsof her mother, elder sister and younger brother. She testifiedthat thereupon when she was about to proceed toward thestream she was dragged to the shrub jungle despite her resis-tance. He put her on the ground and when she cried out forhelp ("mother, mother") the accused-appellant hadcovered her face with the clothes she was carrying with herfor washing. She had struggled in vain to free herself from hisgrip. In cross-examination she has described in detail how he
Bandara v. The State
succeeded in having sexual intercourse with her forcibly. Hernarrative was to the effect that the accused-appellantpenetrated her without her consent. Her version was notimpugned or assailed in cross-examination.
In this regard we are reminded of the observations ofJustice H.N.G. Fernando in Edrick de Silva vs. Chandradasade Silva151 at 170 where he observed: "That when there is ampleopportunity to contradict the evidence of a witness but is notimpugned or assailed in cross examination that is a specialfact and feature in the case, it is a matter falling within thedefinition of the word "proof' in Section 3 of the EvidenceOrdinance and a trial Judge or Court must necessarily takethe fact into consideration in adjudicating the issue before it".
The learned Senior State Counsel further submitted thatan adverse inference should be drawn against the accused-appellant for the reason that he opted to remain silent onthe face of incriminating circumstances established by theprosecution. He cited the judgment of Justice F.N.D.Jayasuriya in Kankanam Arachchilage Gunadasa vs. TheRepublic(6) in support of this contention. On the other handthe learned counsel for the accused-appelant referred us tothe judgment of Howard, CJ in King vs. Themis Singhd71 Itwas a case where the appellant did not go into the witnessbox. But the appeal was allowed in that case for the reasonthat the Court of Criminal Appeal found that the evidence o:the prosecutrix was weak to secure a conviction for rape. Healso referred us to the case of King vs. Ariyaratne(8> where thedefence was that the accused had nothing to do with the girl.Appeal was allowed there for the reason that because of theweak evidence the Crown Counsel conceded that he was un-able to support the conviction.
In this case as we have already observed the prosecutrix'sstory that she was raped by the accused-appellant cameunassailed and unimpugned. The evidence of the medicalexpert to the effect that there was a rupture of the hymen at 7
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o'clock position which was consistent with the stoiy ofhaving sexual intercourse. When there is a case to answer onthe prosecution evidence of the accused-appellant remainssilent court may regard the inference from his failure totestify as, in effect, a further evidential factor to support theprosecution case. Vide the judgment of Lord Taylor of Gosforth,C.J. in Regina vs. Cowan(8> Regina vs. Gayle®, Regina vs.Ricciard(10)
In this case on the face of cogent and over-whelmingevidence against the accused-appellant which is of incrimi-nating nature he remained silent, though he had theopportunity to explain away such incriminating evidence ad-duced against him.
On a consideration of all the matters referred to above weproceed to dismiss the appeal of the accused-appellant.
HECTOR YAPA, J. (P/GA) – I agree.Appeal dismissed