Inoka Gallage v. Kamal Addararachchi and Another
v.KAMAL ADDARARACHCHI AND ANOTHER
SUPREME COURTS. N. SILVA, CJ„
BANDARANAYAKE, J. ANDJ. A. N. DE SILVA, J.
SC LEAVE TO APPEAL NO. 30/2001
CA CASE NO. 90/97
HC COLOMBO NO. 7710/96
OCTOBER 23 AND NOVEMBER 09, 2001 AND
FEBRUARY 08, MARCH 13 AND MAY 08, 2002
Penal Code – Abduction and rape – Sections 357 and 364 of the Code -Consent – Rule regarding corroboration – Whether weakness of the defencewould improve a weak case for the prosecution.
The accused was indicted in the High Court on two counts (i) abduction of InokaGallage on 25. 08. 1993 in order that she may be forced or reduced to illicitintercourse, punishable under section 357 of the Penal Code and (ii) committingrape on her on the same date, punishable under section 364 of the Penal Code.The trial of the case was by the High Court, without a jury.
The prosecutrix said that she offered vigorous resistance to the alleged rape. But,she had no injuries. The doctor's evidence was that she was still a virgin.Subashini, a friend of the prosecutrix said that on 26th Inoka came to her placearound 11 am and whilst talking she said that the previous day she went tothe accused's house. The accused was not there but his aunt was there andtreated her well. The accused arrived around 9.30 pm and after having dinnerall three of them spent the entire night by having a "cosy chat" in that house.The impression created was that she was under the watchful eye of the old lady.She did not mention the incident of rape which she later alleged had taken placea few hours earlier.
Consent to sexual intercourse is a defence to a charge of rape. Consentrequires voluntary participation as against passive giving in. A mere actof submission does not involve consent. Consent may be expressed orimplied.
Sri Lanka Law Reports
 1 Sri L.R.
Corroboration is not a sine qua non for a conviction in a rape case. Itis only a rule of prudence. If the evidence of the victim does not sufferfrom basic infirmity and the probability factor does not render it unworthyof credence, as a general rule there is no reason to insist on corroboration.But, in a trial without a jury there must be an indication in the judgmentthat the judge had this rule in mind.
In the circumstances of the case the prosecutrix was an unreliable witnessand it was unsafe to act on her sole testimony.
The prosecutrix had testified during the non-summary inquiry in a crowdedcourt but the trial in the High Court where the acused was convicted washeld in camera. Thus, she had been treated by the trial Judge in a specialway, which was unwarranted.
In the case of rape the onus is on the prosecutix to prove affirmatively,beyond reasonable doubt each ingredient of the offence beyond reasonabledoubt and such onus never shifts. The weakness of the defence case cannever bolster up a weak case for the prosecution.
Cases referred to :
Regina v. Lucas – (1981) QDB 720.
Rao Harnarian v. State – AIR 1958 Panjab 123.
AIR 1948 Oudh 1 – Cr. U. 542.
LEAVE to appeal from the judgment of the Court of Appeal.
Ranjith Abeysuriya, PC with Miss Lanka de Silva and Miss Shamini Gunaratne
D. S. Wijesinghe, PC with Priyantha Jayawardena and Miss Chandrika Silva for
Yasantha Kodagoda, Senior State Counsel for Attorney-General.
Cur. adv. vult.
Inoka Gallage v. Kama! Addararachchi and Another
(J. A N. De Silva, J.)
May 30, 2002
J. A. N. DE SILVA, J.
This is a Special Leave to Appeal application filed by one Inoka 1Gallage, the prosecutrix in a rape case, against the decision of theCourt of Appeal acquitting the accused-appellant, respondent(hereinafter referred to as the accused).
The acused was indicted in the High Court of Colombo on twocounts. In the first count he was indicted with the abduction of InokaGallage on 25. 08. 1983 in order that she may be forced or seducedto illicit intercourse, an offence punishable under section 357 of thePenal Code. In the second count the accused was indicted withhaving committed rape on the petitioner on the said date, an offence 10punishable under section 364 of the Penal Code.
After trial the learned High Court Judge, sitting without a Juryconvicted the accused on both counts. The accused was sentencedto a term of two years' rigorous imprisonment on the first count andto a term of 10 years' rigorous imprisonment on the second count,both sentences to run concurrently. In addition the accused wasordered to pay a fine of rupees one million with a default term oftwo years' rigorous imprisonment. It was further ordered that out ofthe said fine of rupees one million a sum of Rs. 9,000,000 to bepaid to the prosecutrix as compensation.20
The accused appealed against the said conviction and sentence.
The appeal was fully argued for nearly 18 days in the year 2000and on the 15th of December, 2000, the Court of Appeal allowedthe appeal and set aside the said conviction and sentence andacquitted the accused.
The Attorney-General who appeared for the State did not challengethe judgment of the Court of Appeal. However, the prosecutrix filed
Sri Lanka Law Reports
 1 Sri LR.
a petition and affidavit seeking leave from this court against the saidacquittal. It is relevant at this stage to mention that before filing theindictment in the High Court there was a non-summary inquiry in the soMagistrate's Court of Colombo. In that case, after recording theevidence of the prosecutrix, the learned Magistrate dischargedthe accused as he did not place any reliance on the testimony ofthe prosecutrix. Thereafter, the Attorney-General having consideredthe material available, indicted the accused in the High Court,
Mr. Abeysuriya, President's Counsel, on behalf of the prosecutrix urgedthe following grounds in support of this application :
That the Court of Appeal has wrongly interpreted the true
meaning of the phrase 'without her consent' and in particularthat there could be tacit and implied consent.40
That Court of Appeal has erroneously ruled that the absenceof injuries on the body of the prosecutix strongly suggestedconsensual sexual intercourse.
That the Court of Appeal has wrongly ruled that the law ofSri Lanka has a legal requirement for corroboration of thetestimony of the prosecutrix.
That the Court of Appeal has misdirected itself in holdingthat the trial Judge was wrong in ordering that the trial beheld in camera.
That the Court of Appeal has failed to consider the contention soon behalf of the prosecutix that the proved lies uttered bythe accused would amount to corroboration of the version
of the prosecutrix on the authority in the decision of Reginav. Lucas.™
The first and second grounds urged by the learned counsel forthe petitioner are considered together for convenience. Consent to
Inoka Gallage v. KamaI Addararachchi and Another
(J. A. N. De Silva, J.)
sexual intercourse on the part of the woman is a good defence toa charge of rape unless the woman is unable to consent or dissentby reason of (a) extreme youth (b) unconciousness (c) idiocy orimbecility or (d) consent obtained by force. Consent on the part of 60the woman as a defence to an allegation of rape requires voluntaryparticipation. A woman is said to consent when she freely agreesto submit herself. It is always a voluntary and concious acceptanceof what is proposed to be done by another and concurred in by theformer. There is a difference between consent and submission tosexual intercourse. Every consent involves submission but the conversedoes not follow and a mere act of submission does not involve consent.
It will be, therefore, proper to have a correct concept of what shouldbe treated as consent on the part of the prosecutrix. In the case ofRao Harnarian v. State, Justice Tek Chand referred to the distinction 70between 'passive submission' and 'consent' in the following words :
"a mere act of helpless resignation in the face of inevitablecompulsion, quiesence, non-resistance or passive giving in, whenvolitional faculty is either clouded by fear or vitiated by duresscannot be deemed to be consent as understood in law. Consenton the part of a woman as a defence to an allegation of raperequires voluntary participation, not only after the exercise ofintelligence based on the knowledge of the significance and moralquality of choice between resistance and assent. Submission ofher body under the influence of fear or terror is no consent." so
When the court is confronted with a situation where the victim saysthat the act was done without her consent and the accused takesup the position that it was done with her consent, then consentbecomes a matter of inference to be made from evidence of previousor contemporaneous acts and conduct and other attendant circum-stances. In considering the question of 'consent' it will also be usefulto refer to some observations made by Dr. Gour's Penal Law (SeventhEdition, page 1845).
Sri Lanka Law Reports
 1 Sri LR.
"The question of consent is by far the most important in thecase. Of course, such consent may be express or implied. If it 90is an express consent a case will be seldom taken to court. Ifit is taken to court, it will have to consider if such consent waslikely to have been given by the prosecutrix. Excepting, of course,the case of prostitutes and other mercenaries, women are seldomprone to translate their thoughts in these matters into words. Theyusually leave the matter of consent to tacit understanding. In suchcases consent becomes a matter of inference to be made fromevidence of previous or contemporaneous acts and conduct andother surrounding circumstances."
In a decided case of alleged rape of a girl, evidence showed that ioothe girl left home without compulsion, that she journeyed with theaccused from place to place, she never complained of any ill treatmentby the accused to any of the people she met and there was onlyher evidence that alleged sexual intercourse was without her consent,it was held that the circumstances indicated that if there was anysexual act it was with her consent.<3)
In the instant case too the Court of Appeal has taken into con-sideration the previous and subsequent conduct of the prosecutrix.
The court also has considered the absence of injuries on the prosecutrixdespite the fact of her saying that she offered vigorous resistance, noThe doctor's evidence was that she is still a virgin, in this backdropthe Court of Appeal had come to the conclusion that if any sexualact had taken place it had been with her consent.
The 3rd ground raised by the learned counsel for the petitionerwas that the Court of Appeal wrongly ruled that the law of Sri Lankahas a legal requirement for corroboration of the testimony of theprosecutrix.
It is to be noted that corroboration is not a sine qua non for aconviction in a rape case. In the Asian set up refusal to act on the
Inoka Gallage v. Kamal Addararachchi and Another
(J. A. N. De Silva. J.)
evidence of a victim of sexual assault in the absence of corroboration 120as a rule is adding insult to injury. If the evidence of the victim doesnot suffer from basic infirmity and the probability factor does not renderit unworthy of credence, as a general rule there is no reason to insiston corroboration. The principles that have to be borne in mind whenconsidering the evidence of the prosecutrix have been clearly laiddown in several decisions of the Supreme Court. It has been heldthat the prosecutrix cannot be considered to be an accomplice. Asa rule of prudence, however, it has been emphasized that courtsshould normally look for some corroboration of her testimony in orderto satisfy itself that the prosecutrix is telling the truth and the person 13°accused of abduction or rape has not been falsely implicated. Theview that no conviction without corroboration was possible has notbeen accepted. The only rule of law is the rule of prudence, namelythe advisability of corroboration should be present in the mind ofthe Judge. Where the case is tried with the aid of a jury it is necessarythat the Judge should draw the attention of the jury to the advisabilityof looking for corroboration, wherever corroboration is needed. But,where the case is tried by a Judge alone as it is now being donein our country there must be an indication in the course of the judgmentthat the trial Judge had this rule in mind when he or she prepared 140the judgment. In a given case if the Judge thinks that there is noneed of corroboration he should give reasons for dispensing withthe necessity of such corroboration. But, if a conviction is based onthe evidence of the prosecutrix without any corroboration it will notbe illegal on the sole ground of absence of corroboration. However,it is always safe to look for corroboration.
Generally, a conviction for rape almost entirely depends on thecredibility of the woman so far as the essential ingredients are con-cerned, the other evidence being merely corroborative. There maybe many factors in a case tending to show that the testimony of the 150prosecutrix suffers from infirmities or defects in a manner so as tomake it either unsafe or impossible to base a conviction on herevidence.
Sri Lanka Law Reports
 1 Sri LR.
In the instant case the Court of Appeal has clearly stated that theprosecutrix is unworthy of credit and her evidence cannot be reliedupon. Apart from the reasons adduced by the Court of Appeal thefollowing items of evidence demonstrates this fact beyond any doubt.Devika Subaashini, the friend of the prosecutrix has stated that onthe 26th Inoka came to her place around 11. am and whilst talkingshe had said that the previous day she went to the accused's house 160and the accused was not there but his aunt who was there treatedher well. The accused came to the house around 9.30 pm and afterhaving dinner all three of them spent the entire night by having a"cosy chat" in that house. The impression she has created is thatshe was under the watchful eye of the old lady the whole night. Shehas not uttered anything about the incident of rape which she lateralleged had taken place a few hours earlier. Furthermore, accordingto Devika she had been told that the accused suggested to Inokato stay at Devika's place and continue her studies. According to theevidence it is the prosecutrix who had suggested that she would 170stay at Devika's place and continue her studies, when the accusedtold her to go back home and study. It thus appears that the prosecutrixis a person who changes her version of the events when it suits her.
In these circumstance one cannot disagree with the findings of theCourt of Appeal that she is an unreliable witness and it is unsafeto act on her sole testimony.
The next point raised by the learned President's Counsel was thatthe Court of Appeal misdirected itself in holding that the trial Judgewas wrong in ordering that the trial be held in camera.
On a careful consideration of the judgment of the Court of Appeal 180we find that what the Court of Appeal has stated is that the prosecutrixhas given the same evidence in a crowded court house on an earlieroccasion and therefore in those circumstances the prosecutrix neednot be given special treatment in the High Court. The High Court recordbares ample testimony to the fact that this witness has been treatedby the trial Judge in a special way. The observation by the Court
Inoka Galtage v. Kamal Addararachchi and Another
(J. A N. De Silva, J.)
of Appeal that the witness had been mollycoddled by the Judgetherefore is warranted.
The final ground urged by the learned Counsel was that the Courtof Appeal has failed to consider that the lies uttered by the accused 190would amount to corroboration of the version of the prosecutrix. Inthis matter the learned counsel drew the attention of Court to thedecision in R. v. Lucas (supra).
In a case of rape the onus is always on the prosecution to proveaffirmatively, beyond reasonable doubt each ingredient of the offenceand such onus never shifts. Since the Court of Appeal had consideredthe prosecutrix as an unreliable witness not worthy of credit, therewas no duty cast on the Court of Appeal to consider the evidenceof the accused. The weaknesses in the defence case can never bolsterup a weak case for the prosecution. Therefore, on a consideration 200of all these matters we see no merit in this application. Special leaveis refused. We order no cost.
SARATH N. SILVA, CJ. – I agree.BANDARANAYAKE, J. – I agree.
Special leave to appeal refused