016-NLR-NLR-V-78-KARUNASENA-Appellant-and-THE-REPUBLIC-OF-SRI-LANKA-Respondent.pdf
Karunasena v. The Republic of Sri Lanka
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1975 Present: Sirimane, J., Wijesundera, J. and Ratwatte, J.
KARUNASENA, Appellant and THE REPUBLIC OF SRILANKA, Respondent
S. C. 44/75—H. C. Negombo 30/74
Criminal Law—Rape—Defence of Consent—Conviction based on theuncorroborated testimony of the prosecutrix—Failure to givedirections to the Jury on corroboration.
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SIR1MANE, J.—Karunasena v. The Republic of Sri Lanka
Where the accused-appellant was convicted on a charge of rape,in circumstances indicative of consent on the part of the prosecutrix—
Held, in a charge of this nature, a proper direction would havebeen to tell the jury that it is not safe to convict a person on theuncorroborated testimony of the prosecutrix but that the jury, ifthey are satisfied with the truth of her evidence, may, after payingattention to that warning, nevertheless convict.
The need for corroboration in cases of rape commented on.
A PPEAL against conviction at a Trial before the High Court-
R.K. W. Gunasekera with Q. Palliyaguru for the Accused-Appellant.
Shibly Aziz, State Counsel for the State.
Cur. adv. vult.
June 12, 1975. Sirimane, J.—
The accused-appellant was convicted on a charge of rape andsentenced to five years rigorous imprisonment.
The case for the prosecution was that the prosecutrix on herway back from Church on 10th June, 1973 at about 5-30 p.m. wentto the house of Police Constable Wijeyepala to borrow the news-papers. The appellant who is the brother-in-law of Wijeyepaladragged her into the house, put her on a bed 1 feet high withher legs hanging on its side, stood between her legs closed hermouth with one hand to muffle her cries, held her legs down withthe other and had forcible sexual intercourse with her.
The appellant admitted that he had sexual intercourse with theprosecutrix but claimed that she was a consenting party. Therewere a number of circumstances which supported consent or atleast involved it in grave doubt.
The prosecutrix and the appellant were both of about thesame age—23 years, and the former admitted that for about threeyears prior to the date of the alleged offence she had been comingdaily, to the house where the appellant lived to borrow thenewspapers. Yet, in Court she tried to make out that she hadnever spoken to the appellant though in her statement to thePolice (which was marked) she had stated that she had spokento him in the presence of the other members of the household.
SERI MANE, J.—Karunasena v. The Republic of Sri Lanka
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The appellant’s position was that he had been on friendly termswith her for a long time and in fact was having an “ affair ” withher. The appellant’s witness Sumanawathie had seen the two ofthem talking to each other alone on many occasions. Her denialthat she ever spoke to the appellant before is quite improbableand obviously an attempt to so far remove herself from theappellant as to negative consent.
It was admitted that Wijeyapala’s house, where the appellantlived, was only a few feet away from a fairly frequented highroad, yet though the prosecutrix claims to have cried out whenshe was dragged inside from the verandah no one appears tohave heard these cries, not even the neighbour Sumanawathiewho occupied the adjoining twin house.
The alleged position in which the sexual intercourse took placeis not an easy one for forcible entry and seems improbable. Thismay well be the reason the prosecutrix was unable to givedetails when cross-examined on this aspect and preferred toremain silent. The appellant’s version on the other hand was thatthey were on the bed for sometime and then had intercourse.
Another circumstance that strongly supported consent was thecomplete absence of any injury—even a scratch—on any part ofthe body of the appellant. In the position described by the prose-cutrix her hands were free and if she was an unwilling party itis difficult to imagine how the appellant could have performedthe act with the prosecutrix protesting and struggling withouteven receiving a nail mark on his body. Even the prosecutrixhad no other injuries on her thighs or private parts except thetears of her hymen. She had some nail marks near her mouthwhich the appellant suggested had been caused after she left,him and when her parents came to know what had happened.
Yet another circumstance was that though the incident is saidto have taken place at 5.30 p. m., the first complaint was made atthe Negombo Police Station only at 12.10 a.m. on 11.6.73. Why wasthere this inordinate delay ? It is true no doubt that the appellantwas the brother-in-law of Wijeyapala who was a Constableattached to the Kochchikade Police Station. This Police Stationwas only 100 yards away from the house of the prosecutrix. It maywell be that the prosecutrix and her parents wanted to avoid goingto that Police Station but then why the delay till 12.10 a.m. to goto the Negombo Police Station which was only three miles away ?It also transpired that the prosecutrix’s father had first gone tosee a Proctor before the complaint was made and this partlyaccounted for the delay. The learned Trial Judge gave his own
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SIRIMANE, J.—Karunasena v. The Republic of Sri Lanka
reason to the Jury as to why the prosecutrix’s father may havegone to see a Proctor which was favourable to the prosecution.He may have, in fairness to the appellant, also posed the questionto the Jury for their consideration as to whether he went to seea Proctor to find out what to do as the act had been done with,consent. It was in evidence that the prosecutrix’s father had beena dealer in illicit liquor and it is not likely that such a persondid not know what to do if his daughter complained of a straightforward case of forcible intercourse.
These are some of the main circumstances which make thestory of the prosecutrix that she was forcibly raped seem im-probable and doubtful. There was therefore a need for caution.The learned Trial Judge however completely failed to give theusual directions on corroboration that are given in cases invol-ving sexual offences. I do not know whether he omitted to do sobecause the appellant admitted the act of intercourse. It must beremembered however that the “ offence ” includes not only theact but also the fact that it was done “ against her will or withouther consent. ” It was therefore necessary on that aspect of thematter to warn the Jury. A proper direction would have been totell the Jury “ that in a rape case it is not safe to convict on theuncorroborated testimony of the prosecutrix but that the Jury,if they are satisfied with the truth of her evidence may, afterpaying attention to that warning, nevertheless convict.” Corro-boration means some additional evidence rendering it probablethat th« story of the prosecutrix is true and that it is reasonablysafe to act upon it. In cases of this type one can hardly expectdirect evidence of corroboration, but there can be circumstanceswhich support the prosecutrix. Where however there are infir-mities on such a vital matter as consent, even though corrobora-tion is not essential before there can be a conviction, thenecessity of corroboration, as a matter of prudence, must bepresent in the minds of the Jury before a conviction withoutcorroboration can be sustained. It was therefore very necessarythat the usual directions on corroboration should have been givenin this case. Learned Counsel for the State (rightly) did notseek to support the conviction. For these reasons we set asidethe conviction of the appellant and acquitted him at theconclusion of the argument before us on 23.5.75.
Wijesundera J.—I agree.
Ratwatte, J.—I agree.
Appeal allowed.