014-NLR-NLR-V-76-J.-K.-P.-JAMIS-alias-J.-Jayasekera-and-3-others-Appellants-and-INSPECTOR-OF.pdf
Jamia v. Inspector of Police, Middeniya
67-
1969Present: Weeramantry, J.
J. K. P. JAMIS (alias J. Jayasekera) and 3 others, Appellants, andINSPECTOR OP POLICE, MIDDENIYA, Respondent
S, C. 1167-70/68 — M. C. Walasmulla, 28665
Criminal law—Offence of abducting a girl to compel her marriage—Evidence of compulsion as distinct from persuasion.
The 1st accused-appellant was charged with the offence ofabducting a girl in order that she may be compelled to marry him.The evidence established that, at the time of abduction, the girl wasunwilling to go with the accused. The defence was that the girl wastaken away to be persuaded rather than compelled to marry theaccused. The finding of the Magistrate was that, soon after theabduction, the girl was kept in a house in order to attempt topersuade her to get married.
Held, that the material consideration was the intention of theaccused at the time of abduction. “ The uprooting of a girl from herenvironment of parental protection and her removal into the areaof influence of the accused-appellant is a means of breaking downher resistance . . . Such a situation is charged with all the elementsof compulsion though in fact the process resorted to may bedescribed as an attempt at persuasion. ”
PPEAL from a judgment of the Magistrate’s Court,Walasmulla.
K
Colviri R. de Silva, with Ananda Karunatillake, for the accused-appellants.
Kosala Wijayatilake, Crown Counsel, for the Attorney-General.
Cur. adv. vult.68
WEERAMANTRY, J.—Jamis v. Inspector of Police, Middeniya
October 27, 1969. Weeramantry, J.—
The charges against the accused appellants arise from thealleged abduction of a girl named Karunawathie on 11th October1966 in order that she may be compelled to marry the first accusedappellant. After trial the first accused-appellant was convictedof the offence of abduction and the others of certain ancillaryoffences.
The principal point taken on behalf of the appellants is thatthe prosecution has failed to prove beyond reasonable doubt theintent with which the girl Karunawathie was abducted. It isthe contention of the appellants that the evidence reveals no morethan that this girl was abducted, but only with a view to persuadeher to marry the first accused-appellant. It is submitted that asabduction per se is not a crime under our law without the speci-fied intent, the prosecution must fail by reason of its failure toprove the intent of compelling the girl to marry this appellant.
It would appear that the girl and the first accused-appellanthad been on terms of close friendship with each other for sometime anterior to this incident. The parties would appear alsoto have been related, though their precise relationship is notclear.
The accused-appellant had at a certain stage been living in ahouse immediately adjacent to the house in which thecomplainant Karunawathie lived and in this way a close affectionhad developed between them, which was proved by the produc-tion at the trial of a series of letters written by the girl to thefirst accused-appellant indicating very strong affection for himand interest in his welfare and also that she desired to marryhim at some time in the future. The letters are undated and itis thus not possible to say whether this affection was stillsubsisting at the time of this incident, nor do the letters indicateat what time in the future the girl had contemplated marriage.
On 9th October 1966 the accused-appellant had given noticeof marriage to the Registrar in respect of an intended marriagewith the girl, and according to the Registrar a special licence forthis marriage was received by him on October 10th.
On 11th October, according to the prosecution evidence, thegirl Karunawathie was on her way to school accompanied byher brother Dharmadasa and another girl also named Karuna-wathie. When she was thus on her way the accused-appellant
WEERAMANTRY, J.—Jamia v. Inspector oj Police, Middeniya69
came there in a car and having alighted from it rushed towardsher, chased her for a distance of four to five fathoms and caughther by her hair. She fell down and struggled but could notescape: Her brother clung on to the neck of the accused-appellant and is also stated to have bitten this accused-appellant.The girl was forcibly put into the car and taken to the house ofthe Registrar. The Registrar was apparently away in his officeat that time and the accused-appellant remained in the house ofthe Registrar from the time of their arrival there in the morningtill the Registrar returned from his office at 2.30 p.m.
It is not suggested that at any time during the several hoursspent by the parties in the house of the Registrar, any force was ^used on the girl to compel her to agree to the suggested marriage.Indeed, the girl’s own evidence is that she spoke to theRegistrar’s wife, assisted her in the kitchen, and even partook ofsome coffee during this period, all this while the accused-appellant remained in a different part of the Registrar’s house.
It is upon the basis of conduct at that stage indicating a totallack of compulsion that the defence urged a failure by theprosecution to prove an intention to compel the girl to marrythe accused-appellant against her will. In this connection theappellants place reliance in particular on the finding of thelearned Magistrate that in his view Karunawathie was kept inthe house of the Registrar in order to attempt to persuade herto get married. They rely also on a statement by the accusedmade promptly to the Inspector of Police, that he took the girlunder the impression that she would agree to marry him.
It seems to me that this contention on behalf of the accused-appellants cannot be sustained, in the light of the very positiveevidence in this case, of the girl’s conduct at the time of abduc-tion. This conduct quite clearly demonstrates that she was not,at the time of abduction, agreeable to such a marriage. -Hadthere, been such a willingness on her part at that time, it isdifficult to conceive of her having put up the resistance that sheis shown to have offered, or to. have run away from theaccused-appellant or to have put him under the necessity ofdragging her by her hair into the car. There is moreover herevidence that' in the course of the struggle she received injuriesand there is the evidence of the Doctor who states that the girlupon examination by him the following day was found to have
70WEERAMANTRY, J.—Jamia v. Inspector of Police, Middeniya
a scrape mark on the right side of the neck which could havebeen caused during the course of a struggle. This corroboratesthe evidence of the girl who herself has stated in evidence thatshe received injuries on her neck.
The girl has also stated that she raised cries and that her mouthwas closed by the accused and those who assisted him. Further-more, the complainant states that she asked the other girlKarunawathie to inform her parents about this matter and thereis the fact that the other girl Karunawathie had in fact made aprompt complaint of this incident to the father of thecomplainant.
Another important item of evidence indicating that the girldid offer resistance is the circumstance that her clothes werefound by the police to be mudstained, which tallies with thegirl’s version that she fell down in her attempt to escape. Allthese items spoken to by the girl are also substantially corro-borated by the other girl Karunawathie and also by the girl’sbrother Dharmadasa.
In the light of all this evidence I find it impossible to take anyview other than that the girl at the time of abduction wasunwilling to go with the accused-appellant.
What then was the intention of the accused-appellant at thatmoment, for that is the point of time with reference to whichhis intention must be considered ?
We have on this matter the uncontroverted circumstance thatthe accused had on the 9th given notice of marriage and that aspecial licence had been received on the 10th. There could havebeen no intention on the part' of the accused when he acted inthis way on the 11th other than the intention to marry thecomplainant and that was clearly his object in so abductingher.
If the object was marriage, if the girl was so manifestlyunwilling, and if force had to be employed to take her away,one can come to no other conclusion than that the intention ofthe accused-appellant was to compel her to marry him.
One can, of course, »conceive of cases where a girl is taken awayin these circumstances, but the only object of the abductor is toattempt to persuade rather than to compel. However, the very
WEERAMAJSrTRY, J.—Jamia t>. Inspector oj Police, Middeniya
71
fact that a girl is forcibly taken away against her will, viewed .against an admitted background of marriage contemplated andprepared for, is suggestive of pressure being brought to bear uponthe girl to obtain her consent, Compulsion is a matter of degreeand conduct may still be compulsion though it contains noelement of force. The uprooting of a girl from her environment ofparental protection and her removal into the area of influenceof the accused-appellant is a means of breaking down herresistance. The end result of such a procedure is the obtainingof her consent through the application upon her will of thepressure of her changed situation, which in that new environ-ment she . is ill equipped to resist. Such a situation is chargedwith all the elements of compulsion though in fact the processresorted to may be described as an attempt at persuasion.Resistance often crumbles* under the pressure of an unaccustomedenvironment, and all the more where the subject is a girl oftender years. Even the employment in such an environment ofall manner of blandishments without any show of force maynone the less be a process of compulsion.
Even giving therefore to the accused-appellant the full benefitof the learned Magistrate’s finding that the complainant was kept -in the Registrar’s house in order to attempt to persuade her toget married, I still consider that it was the intention of theaccused-appellant at the time of abduction to use compulsion onher to obtain her consent for he was by his act withdrawing herfrom the area in which her free will had full play.
It is true that the learned Magistrate has discounted theevidence of the girl to a large extent as after an incident of thisnature the female party often goes back upon her lover and givesevidence against him. It is my view however that quite apartfrom her evidence and discounting it altogether there isindependent evidence in this case proving her conduct and herattitude of resistance, and I do not think that it would be fairto her to conclude, nor indeed was it seriously suggested inappeal that'this conduct was mere pretence on her part.
One more matter to which I should advert is that had the girlbeen agreeable to this marriage, one fails to see, as the learnedMagistrate has remarked, any need for the parties to spend sixhours, that is from 8.30 a.m. to 2.30 p.m. at the house of theRegistrar awaiting his return from the office. Had the girl been
72
WEERAMANTRY, J.—Jamis v. Inspector of Police, Middeniya
a consenting party it would have been very simple for theaccused-appellant to drive her straight to the Registrar’s officewhere the special licence had already arrived.
I would finally wish to observe that the obtaining of a speciallicence for marriage is an act done only after the most carefuldeliberation and is a step which when decided on is ordinarilytaken with a view to its being carried through to completion.Furthermore, the determination of the accused-appellant to carrythis objective through to completion is shown by the circum-stance of his having come in a car to the spot and taken the veryserious step of forcibly putting the girl into the car. Againstthis background of determined conduct, it is difficult to say thatthe intention at the time of abduction was mere persuasion asopposed to compulsion.
For all these reasons, I consider that the contention urged onbehalf of the appellants must fail. In the result the appeals aredismissed.
Appeals dismissed.