061-NLR-NLR-V-36-ELIYATAMBY-v.-WIJELATH-MENIKA.pdf
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AKBAR. J.—Eliyatamby v. Wijeylath Menika.
1934 .Present: Akbar J.
ELIYATAMBY v. WIJEYLATH MENIKA30—P. C. Negombo, 6,388
Brothel—Charge of keeping and managing a brothel—Single act of prostitutioninsufficient—Ordinance No. 5 of 1889, s. 1 (2).
A single act of prostitution is insufficient to render a place a brothel.
There must be evidence that the premises were used as a place to whichmen resort for purposes of prostitution.
^^PPEAL from a conviction by the Police Magistrate of Negombo.
A. Rajapakse, for accused, appellant.
March 13, 1934. Akbar J.—
The accused in this case has been convicted by the learned PoliceMagistrate of keeping and managing a brothel and has been sentenced toundergo rigorous imprisonment for six months and also ordered to enterinto a bond to be of good behaviour for a period of twelve months. Thisappears to be her first offence, if it is an offence.
It appears from the evidence that next door to the accused was themistress of a Police Constable who also figures as one of the witnessesin the police plaint. This Police Constable's mistress appears to be on
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angry terms with the accused (see the evidence of the girl Mary). OnNovember 3, 1933, the Sub-Inspector of Police produced a man calledJokinu Fernando, who stated that the house which the accused’s husbandoccupied was a place where he had had women before for sexual inter-course on payment and that he had done so on one or two previousoccasions and that there were two other women also available; he furtherstated that he had seen other males also appearing at the house for thesame purpose. Upon this a search warrant was issued and the Inspectormade use of Jokinu Fernando as a decoy and gave him a marked He. 1note. The Police Inspector then raided the place in the company ofsome Sergeants and Police Constables. In spite of these Police Officers,if the Inspector is to be believed, he saw two women running awayfrom behind the house whom, he said, he could not make out becauseit was rather dark. Why the other Police Officers did not give chaseand arrest these women is not explained. It almost looks as if thispart of the evidence was the necessary touch to make this house of theaccused a brothel because the law requires as a rule more than onewoman. When the Police Inspector entered the place he said he foundJokinu having intercourse with a woman called Mary and that Jokinutold him that the accused had taken He. 1 note as payment, that he thensearched Menika and found the Re. 1 note in her hand. I cannot under-stand why he searched Menika if the Re. 1 was in her hand and why theaccused should have kept the Re. 1 clenched in her fist, whilst theInspector was rushing into the room to detect Jokinu and Mary together.However that may be, the next step taken by the Inspector was extra-ordinary. He was so considerate enough to the accused because therewas no one to look after the house that he left her behind and took thisgirl Mary to the Police Station. There he recorded her statement. Thisis most extraordinary conduct on the part of a Police Officer. The searchwarrant was issued for the purpose if raiding this place which was saidto have been run as a brothel by the accused’s husband. The informationgiven by the Inspector and his informant Jokinu which led to the issue ofthe search warrant was that it was this accused’s husband who wasrunning this brothel. The husband was away from the house at the time,so it was necessary to make the wife the person who was responsible forrunning the brothel. In any case the Inspector left the woman to lookafter the house and took the girl away to the Police Station. What theexact statement this girl Mary made to the police at the Police StationI do not know, but she now comes forward and makes a long ramblingstatement in which she said that she was visited by several persons in theaccused’s house, that is, the woman Menika’s, and that she was taken tovarious houses by the accused. Jokinu also had forgotten his story aboutthe woman’s husband being the real brothel-keeper and implicates theaccused as the person who was running this brothel. On both previousoccasions when he went to this house it was to this woman Menika he gavethe money and who supplied the woman, but to the Magistrate before hegot the warrant it was to Menika’s husband he gave the money and whosupplied the woman.
So it looks as if the absence of the accused’s husband was rather discon-certing and embarrassing to the police. Whatever it may be, the Inspector
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AKBAR J.—Eliyatamby v. Wijeylath Menika.
states that he warned the accused Menika to attend Court. This was onthe night of November 3. On the ne^t day, November 4, he filed a plaintand the accused was not present in Court.
AH that the Inspector’s evidence proves is that there was only onesolitary act of sexual intercourse detected in the house. It has been heldby the Chief Justice in case S. C. No. 8861 M. C. Colombo, No. 10,563(S. C. M. 31.1.33) and also by Mr. Jus; ice Koch in S. C. 2881 M. C. Colombo,No. 13,698 that one solitary instance is not sufficient to render thiswoman’s house a brothel. As Mr. Justice de Sampayo pointed out in thecase of Silva v. Suppu there must be evidence to prove that the premiseswere used as a place to which men resort for purposes of prostitution withwomen who were to be found in the house. It will be seen in that casethat the prosecution proved that some men and eight women were foundin the house when the Police raided. In the case of Wickramasuriya v.Mary Nona *, Mr. Justice de Sampayo adopted the definition by Mr. JusticeSchneider. In that case there was evidence that a gentleman calledMr. Dant, who was engaged in vigilance work, was accosted by a young manand taken to the accused’s house; the accused introduced him to a youngwoman and charged a fee of Rs. 10. There were altogether about eightyoung women in the house. The large number of women in the housewas a material point in the case. Here, there is only the shadow of twowomen who ran away as seen by the Inspector and who might havecome there for innocent purposes.
The only difficulty I had in this case was the evidence given by thiswoman Mary who testified to her previous acts of prostitution with theconnivance of the accused, but on her own confession she appears to be,besides this solitary act of prostitution, to be a prostitute herself becauseshe admitted she had been in another brothel before this. As regardsJokinu Fernando’s previous experience with the accused too one mustaccept it with very great caution because he admitted that his own motherhad been convicted for running a brothel.
In my opinion, before an accused person can be convicted under section1 (1) of Ordinance No. 5 of 1889, there must be evidence, as pointed outby the Judges who decided the cases I have named above, that thepremises were used as a brothel, that is to say, evidence to prove thatmen came there for the purposes of prostitution with women or with onewoman in the premises. There must be more than one act proved fromthe evidence which can be accepted without any doubt. I have, as amatter of fact, a doubt as to whether the Re. 1 was found in the possessionof the accused. Even admitting that it was so, her possession can beaccounted for not necessarily in the way that the Magistrate has done,but by accepting an explanation that possibly she was given that Re. 1by Mary to be kept for her. As regards the other acts of intercourse inthe premises besides the one detected by the Inspector, the learned PoliceMagistrate seems to have accepted the whole evidence of the girl when shemade every kind of allegation one could conceive of against the accused.He even accepted Jokinu’s statement and he ends up his judgment asfollows: “ The prosecution story is in my opinion extremely clear andextremely well connected ”. That may be so but he has not tested it to
» 21 N. L. R. 119.* 24 N. L. A. 27. '
DREEBERG J.—The King v. Kennedy.
303
see if it can be believed. A story may be clear and well connected andyet it may be absolutely false. Then the learned Magistrate made thisserious mistake,- which has been pointed out to me by Mr. Rajapakse.He says as follows: “ The defence is obviously false, because the accuseddenies being there at all on the occasion of the Police raid ….Accused’s only witness states that the accused was there and was searchedby the Sub-Inspector. I accordingly convict the accused ”.
I do not know from where the Magistrate got the idea that the accuseddenied she was there at alL I have read her evidence three times and notin a single place has she stated she was not there. What she stated wasthat her husband was out. It is true that she stated that the Sub-Inspector did not take the Re. 1 note from her hand; that does not meanthat she was not present there. Therefore, the learned Magistratemisdirected himself as regards the effect of the defence of the accused. Ido not think the conviction is correct in law for the reasons I have stated,and I set aside the conviction and acquit the accused.
Set aside.