010-SLLR-SLLR-2008-V-2-JAYATILAKA-v.-ATTORNEY-GENERAL.pdf
CAJayathilaka v117
Attorney-General
JAYATHILAKAv
ATTORNEY-GENERALCOURT OF APPEALRANJITH SILVA. J.
SISJRA DE ABREW, J.
CA 110/2002HC HAMBANTOTA 45/99JULY 31, 2007
Penal Code – Section 364(2) e – Charge of rape – Acquitted – Convicted underSection 365(b) 2 – Grave sexual abuse – Prejudice caused to accused byprocedure adopted? – Ingredients different – Principles of Natural Justice -Criminal Procedure Code Sections 176 and 177.
Held:
To act under Section 177 the case must fall within the ambit of Section 176.These two Sections cannot properly be applied to a case in which oneoffence alone is indicated by the facts and in the course of the trial theevidence falls short of the necessary to establish that offence, butdiscloses another offence.
118Sri Lanka Law Reports(2008] 2 Sri L.R
The accused came to the trial Court to defend a charge of rape. His line ofdefence is apparently to attack the charge of rape, he was not given anopportunity to defend a charge under Section 365(2) b(2).
In a charge of rape the prosecution must prove penetration, in a charge ofgrave sexual abuse prosecution is not required to prove penetration. Theingredients in a charge of rape are different from the ingredients that mustbe proved in a charge of grave sexual abuse. Since the accused was notgiven an opportunity to defend the charge under Section 365(b) 2 graveprejudice has been caused to the accused.
APPEAL from the judgment of the High Court of Hambantota.
Case referred to:
Q v Vellasamy 65 NLR 267 at 271.
Ranjith Fernando for accused-appellant.
Gihan Kulatunga SSC for Attorney-General.
July 31, 2007
SISIRA DE ABREW, J.The accused-appellant in this case was charged under Section364(2)(e) of the Penal Code. Thus the accused was charged with theoffence of rape. Although the accused was charged with the offenceof rape, the accused was finally convicted of the offence of gravesexual abuse which is an offence punishable under Section365(b)(2)(b) in the Penal Code. The learned Counsel for the appellantcomplains that the accused was not given any opportunity ofdefending himself of the charge with which he was convicted. Thelearned Senior State Counsel contends that the learned trial Judgehas acted under Section 177 of the Criminal Procedure Code. Sincethe learned Senior State Counsel contends that the conviction can besupported in terms of Sections 177 and 176 of the Criminal ProcedureCode (CPC), it is necessary to consider these two sections. Section177 reads: If in the case mentioned in Section 176 the accused ischarged with one offence and it appears in evidence that hecommitted a different offence for which he might have been chargedunder the provisions of that section, he may be convicted of theoffence which he is shown to have committed although he was notcharged with it.
To act under Section 177 of the Criminal Procedure Code (CPC)
CATharaperiya Gamage Jayathilaka v119
Attorney-General (Sisira de Abrew, J.)
the case must fail within the ambit of Section 176 of the CPC whichreads as follows:
If a single act or series of acts is of such a nature that it is doubtfulwhich of several offences the facts which can be proved willconstitute, the accused may be charged with all or any one or more ofsuch offences and any number of such charges may be tried at onetrial and in a trial before the High Court may be included in one andthe same indictment; or may be charged with having committed oneof the said offences without specifying which one.
Sections 176 and 177 of the Criminal Procedure Code are in termsidentical with Sections 181 and 182 of the old Criminal ProcedureCode. Basnayake C.J. interpreting the said Sections in Q vVellasamyh) at 271 stated thus: "These two sections cannot properlybe applied to a case in which one offence alone is indicated by thefacts and in the course of the trial the evidence falls short of thatnecessary to establish that offence, but discloses another offences."
In the present case the accused-appellant was charged with oneoffence namely the charge of rape. He was acquitted of the chargeof rape {vide: page 198 of the brief). This shows that the evidence ledat the trial was not sufficient to convict him for the offence of rape.
Thus, there was no evidence to convict the accused of the offencewith which he was charged, but it appears according to the opinion ofthe learned Trial Judge that a different offence was disclosed in thecourse of the trial i.e. the offence of grave sexual abuse. There wasno charge on the offence of grave sexual abuse.
In view of the above judicial decision, Section 176 and 177 of theCriminal Procedure Code (CPC) cannot be applied in the present case.Therefore the learned trial Judge was wrong when he applied Sections176 and 177 of the Criminal Procedure Code in this case and as suchthe conviction has to be set aside. For the above reasons I reject thecontention of the learned Senior State Counsel. The learned trial Judge,before convicting the accused, has not given any opportunity to theaccused to answer the offence of grave sexual abuse.
The learned trial Judge has not even given any indication that hewas going to convict the accused of the offence of grave sexualabuse. Thus in this case what we should consider is whether any
120Sri Lanka Law Reportsf2008} 2 Sri L.R
prejudice has been caused to the accused by the procedure adoptedby the learned trial Judge.
The accused-appellant came to the trial Court to defend a chargeof rape. His line of defence is apparently to attack the charge of rape.He was not given any opportunity to defend a charge under Section365(2)(b)(2) of the Penal Code.
In a charge of rape the prosecution must prove the penetration.In a charge of grave sexual abuse prosecution is not required toprove penetration. Thus the ingredients in a charge of rape aredifferent from the ingredients that must be proved in a charge ofgrave sexual abuse. When the accused was convicted withoutbeing charged, grave prejudice is caused to the accused sincehe was not given an opportunity to answer the charge. Sincethe accused was not given an opportunity to defend the charge ofgrave sexual abuse, we hold that grave prejudice has been causedto the accused. Thus the procedure adopted by the learnedtrial Judge amounts to a gross violation of the rules of naturaljustice.
In this case the accused has been convicted violating theprinciples of natural justice. Considering these matters, the convictionand the sentence imposed on the accused appellant cannot bepermitted to stand. We, therefore, set aside the conviction and thesentence. The question that must be considered is whether we shouldorder a retrial or not. We note that there is evidence suggestive of acharge of grave sexual abuse and it is a matter for the trial Court toweigh this evidence and decide whether a charge under Section365(b)(2)(b) has been made out or not. Thus we order a re-trial.Prosecution is at liberty to amend the indictment that has beenpresented on 29.04.1999 at the re-trial.
Conviction and sentence is set aside. Re-trial ordered.
RANJITH SILVA, J. – I agree.
Appeal allowed.
Retrial ordered.