018-SLLR-SLLR-1998-V-3-KATHUBDEEN-v.-REPUBLIC-OF-SRI-LANKA.pdf
CA
Kathubdeen v. Republic of Sri Lanka
107
KATHUBDEEN
V.
REPUBLIC OF SRI LANKA
COURT OF APPEALISMAIL J., (P/CA)
DE SILVA, J„
C.A. NO. 44/94
H.C. COLOMBO B 839/93
MAY 21 ST. 28TH, 1998
Bribery Act – S. 19, 19(C), 25(1) – Soliciting and attempting to accept a gratification- Is sexual intercourse a gratification within the meaning of the Bribery Act -Dock Statement – credibility.
The accused appellant was indicted on four counts for soliciting and attemptingto accept a gratification to wit sexual intercourse with the virtual complainant, asa reward or inducement for arranging a transfer. After trial the appellant was foundguilty and convicted on all four counts.
Held:
It is settled law that an unsworn statement must be treated as evidence.It has also been laid down that if the unsworn statement creates areasonable doubt in the prosecution case or if it is believed, then theaccused should be given the benefit of that doubt.
S.90 of the Bribery Act defines gratification to include among other things,"any other service favour or advantage or any descriptive whatsoever".
"The word gratification is used in its larger sense as connoting anythingwhich affords gratification or satisfaction or pleasure to the taste, appetiteor the mind. The craving for an honorary distinction or for sexual intercourseis an example of mental and bodily desires, the satisfaction of which isgratification which is not estimable in money".
S.25 (1) of the Bribery Act makes ‘attempts' to commit offences specifiedin the act punishable under the same provisions which make the principleoffences punishable.
APPEAL from the judgment of High Court of Colombo.
108
Sri Lanka Law Reports
[1998] 3 Sri LR.
Cases referred to:
0 v. Kularatne – 71 NLR 529.
K v. Sittamparam – 20 NLR 257.
Q v. Buddarakkitha – 63 NLR 443.
Gunapala v. The Republic of Sri Lanka – 1994 2 SLR 180.Faiz Mustapha PC., with S. N. Senanayake for Accused-Appellant.Jayantha Jayasuriya, S.S.C. for the Attorney-General.
Cur. adv. vult.
July 31, 1998DE SILVA, J.
The Accused-Appellant (hereinafter referred to as the appellant) wasindicted before the High Court of Colombo on four counts under section19, 19(C) and 25(1) of the Bribery Act for soliciting and attemptingto accept a "gratification" to wit sexual intercourse with the virtualcomplainant Pallage Dona Damayanthi Monica de Silva, as a rewardor inducement for arranging a transfer for her whilst the appellant wasemployed as the Security Manager of the National Housing Devel-opment Authority.
The first and third counts were for allegedly having solicited agratification in the form of sexual intercourse with the said Monicade Silva, offences punishable under section 19 and 19(C) respectivelyof the Bribery Act.
According to count 2 the appellant on 16.07.1993 in the courseof the same transaction as referred to in count 1 did attempt to havesexual intercourse with Monica de Silva an offence punishable undersection 19 read with section 25(1) of the Bribery Act. Count 4 alsorefer to the attempt of the appellant to have sexual intercourse withMonica de Silva and thereby he committed an offence punishableunder section 19(C) read with section 25(1) of the Bribery Act.
After trial the learned High Court Judge on 03.03.1994 found theappellant guilty and convicted him on all four counts. On counts 1and 3 he was sentenced to a term of 5 years rigorous imprisonmenton each count and in addition a fine of Rs. 5000 had been imposed
CAKathubdeen v. Republic of Sri Lanka (de Silva, J.)109
with a default sentence of 2 years rigorous imprisonment on eachcount.
On counts 2 and 4 the appellant was sentenced to a term of 7years rigorous imprisonment with a fine of Rs. 5000 and a defaultsentence of 2 years rigorous imprisonment on each count.
The trial Judge had directed that all these sentences runconcurrently. This appeal is against these convictions and sentences.
The case for the prosecution was that the accused-appellant wasthe Senior Security Manager of the National Housing DevelopmentAuthority at the relevant time and in that capacity he was in chargeof the Security Division of that Authority. Monica de Silva joined theNational Housing Development. Authority as a female security guardin December 1987 and came under the supervision and control ofthe accused who was her immediate superior. As she was a marriedlady and lived in Bandaragama she requested a transfer to Kalutarawhich the appellant refused. Instead the appellant suggested that sheshould spend time with him as husband and wife in order to helpher to get a transfer and also offered to get a National HousingDevelopment Authority house, in Colombo, for her, which offer Monicadeclined as she suspected his motives.
During this period she gave birth to a child and due to the difficultiesencountered in feeding the baby and travelling to Colombo and backshe re-applied for a transfer to Kalutara. On or about the 25th ofNovember 1989 she was transferred to the Gramodaya Centre atKollupitiya. One day the appellant visited the Gramodaya Centreostensibly to inspect the changing room facilities but Monica was ofthe view that the reason of his visit was to explore the possibilityof achieving his purpose and to see whether the place was suitablefor him to commit the said iact.
According to Monica the appellant was refusing to give her thetransfer she had requested because of her unwillingness to accedeto his demands. At one stage she verbally informed the DeputyGeneral Manager (Administration) regarding the harassment shereceived at the hands of the appellant. However she was reluctantto make a complaint in writing as she had to continue to work inthe same institution.
110
Sri Lanka Law Reports
[1998] 3 Sri LR.
Investigations into the activities of the appellant commenced ona confidential letter sent to the Bribery Commissioner's Departmentby the General Manager of the National Housing Development Authority.On 10.07.1990 an officer from the Bribery Commissioner's Departmentcame to see Monica at the said Gramodaya Centre and made inquiresdiscreetly from her about the harassment she was receiving at thehand of the accused-appellant.
After the Bribery officers spoke to her she agreed to co-operatewith them and on 13.07.1990 she received a telephone call askingher to come to the Bribery Commissioner's Department and on thatday she made a statement to the Bribery officers.
The Bribery officers requested Monica to meet the appellant onthe same day in the company of WPC Violet Senadheera who wasto be introduced to the appellant as a married woman, whose husbandhad left her and was prepared to do "anything" in order to securea job. Monica and Violet both visited the appellant in his officewhereupon Monica spoke to him and presented to him an applicationfor transfer which was produced by the prosecution as P(1) andintroduced her friend to the appellant. She also "indicated" herwillingness to sleep with him in return for the favour of getting thetransfer. The appellant thereupon requested Monica to come withViolet to his apartment at Elivitigala Mawatha on 16.07.1990 and alsorequested her to bring her application P(1) and Violet's a applicationfor a job. The appellant stated that he would be on leave that dayand would be alone in the house as his wife would be away. Hehas further stated that he would be taking steps to remove the NationalHousing Development Authority security guards from the housingscheme where he lives.
On 16.07.1990 around 9.00 a.m. Monica with Violet went to theappellants flat at Elivitigala Mawatha. As they approached the frontdoor the appellant opened the front door and took them in. Theappellant was in a sarong but without a shirt and was drying his hairwith a towel. They had been asked to sit in the hall. Having goneto the room the appellant had called Monica inside. The door to thatroom had a transparent curtain. According to Monica when she wentinside the appellant removed his sarong and embraced her andrequested her kiss his private parts which she refused to do.
CAKathubdeen v. Republic of Sri Lanka (de Silva, J.)111
Having observed Violet watching from the hall the appellantsuggested that the door be closed to which Monica said that Violetis also like her and ready for "anything" therefore Violet being therewas not a problem. Soon thereafter the officers of the Bribery Departmentwalked in and arrested the accused. According to the Bribery officersthe accused was naked at that time.
The learned counsel for the appellant submitted the followinggrounds of apeal.
That there are material contradictions inter se and per se inthe evidence of the chief prosecution witnesses and thereforethe learned trial Judge could not have accepted them as truthfulwitnesses.
The learned trial Judge had not given adequate considerationto the dock statement of the accused-appellant and the evidenceled on his behalf.
Counts 2 and 4 of the indictment do not have the elementsknown to law and for that reason they are unintelligible.
On the first ground the learned counsel for the appellant submittedthat Monica is an untrustworthy and unreliable witness. He pointedout that it was the evidence of Monica that on the 13th when theymet the appellant in the office the appellant questioned her in thepresence of Violet whether she was willing to spend time with himas "husband and wife".
Mr. Mustapha pointed out that in cross-examination she changedher position and stated that what the appellant told was not to comeand spend time as husband and wife but “e»0 qd ffysBo datagdOafc;?" Counsel submitted that there is a vast difference betweencalling Monica to spend time as husband and wife and "c&o <jd OjeBOdafo gdOafq?" It was urged that apart from using the word “Umba”no immoral suggestions had been made by the appellant.
In this connection WPC Violet, The decoy, stated that at that timethe appellant said >d OjeSo ®oO mSaeOafm. Oedafstaf."
112
Sri Lanka Law Reports
[1998] 3 Sri LR.
It is to be noted that Monica's position was that the appellant hadbeen demanding from her to have sexual relationship as husband andwife for a long time. She merely narrated this in the examination inchief. State Counsel who prosecuted has not bothered to clarify thisposition in examination in chief. However in cross examination whenquestioned by the defence as to the exact words uttered by theappellant witness came out with the words. It is appropriate at thisstage to set out the evidence relating to this at page 117.
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Kathubdeen v. Republic of Sri Lanka (de Silva, J.)
113
From the above evidence it is clear that Monica's position wasthat not only her even Violet understood the meaning of the wordsuttered by the appellant. At this point it is pertinent to note that Violet'sunderstanding of the words would have been in the context of theinformation supplied by Monica to the Bribery Commissioner'sDepartment.
Thus in the circumstances of this case I do not think thecontradiction referred to by the counsel is a material contradiction.Both versions given by Monica and Violet are substantially same.
The learned trial Judge has addressed his mind to this aspect ofthe evidence when he says that "It is indeed strange and thereforesomewhat unbelievable that a man would arrange for a clandestinemeeting with a woman in the presence and hearing of another woman,who in addition, was a total stranger to him. I have given carefulthought to this situation of the plot arranged by the Bribery officials.The conduct of the accused as well as Violet who was presentedas a woman of easy virtue desperately in need of a job. I am convincedbeyond doubt that accused was prepared to throw caution to the windsin order to achieve his immoral purpose".
The learned counsel also submitted that the trial Judge misdirectedhimself when he treated Violet as a woman of easy virtue withoutany evidence to that effect.
It is to be noted that Violet was introduced as a person whosehusband has left her and was in desperate circumstance to get ajob. Monica has also indicated that violet too is willing to do "anything"with the appellant if she gets a job. In this situation the learned trialJudge has only commented that Violet was presented as a womanof easy virtue and not that Violet was infact a woman of easy virtue.
see no error in the Judge’s comment in this regard.
The learned counsel has also complained that the trial Judge haserroneously treated Monica as a "disinterested" witness. He drew theattention of the court to the evidence given by her where she hadadmitted that she knew that there were no vacancies at Kalutara andthe appellant too told her. Counsel submitted that in spite of this shepersisted her quest for a transfer and she was angry with the appellantfor not acceding to her request and was waiting for an opportunityto harm him.
114
Sri Lanka Law Reports
[1998] 3 Sri LR.
It is to be noted that the trial Judge has considered this aspecton the basis that she never initiated a complaint to the Bribery officials.Till the Bribery officers contacted her she knew nothing about thecomplaint to the Bribery Department. It was the idea of the Briberyofficials to send Violet with her to meet the appellant to the office.In the circumstances one cannot blame the Judge for describingMonica as a disinterested witness.
It was urged that witness Monica has deliberately given falseevidence in this case. Counsel referred to P1 where according to theprosecution evidence the appellant had taken action on her application.He has informed the authority in writing that as there was no vacancyat Kalutara he cannot recommend the transfer. It was contended thatif the appellant had acted on P1 there is no possibility that P1 couldremain with Monica.
On an examination of her evidence at page (33) it is clear thatshe has forwarded several applications and on one occasion appellantrefused to accept the application and on another occasion returnedone to her and she identified P1 as that document. It is also relevantto note that when she went to meet the appellant on the 13th shehad taken this application and appellant requested her to bring it onthe 16th to his home. Bribery officers recovered this from Monica onthe 16th after the said incident. In these circumstances I hold thatthere is no merit in the argument.
The next submission of the learned counsel for the appellant wasthat the trial Judge did not give adequate consideration to the defenceevidence.
Apart from the dock statement, the defence called one TuwanRaheem Jaya, a photographer, to produce certain photographs of thehouse of the appellant. The main purpose of this evidence was toshow that there was a door from the bedroom to the hall. This wasbecause Monica in her evidence has stated that there was no doorto that room. Violet’s evidence on this point was that she cannotremember whether there was a door or not.
These photographs have been taken long after the event and thetrial Judge has correctly rejected his evidence and has stated "In anycase these two witnesses spent only about 15 minutes at the flat and
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Kathubdeen v. Republic of Sri Lanka (de Silva, J.)
115
that too under trying and tense circumstances. If they did not noticeor did not remember the details of the apartment as much as theaccused it is not a matter for surprise."
The appellant made an unsworn statement from the dock. He statedthat he ceased to function as the Senior Security Manager of NationalHousing Development Authority since 15.03.1990 on which date hereceived a transfer to the Ministry of Plan Implementation and worked- under one A. C. Lawrence a security consultant to the said Ministry.On the instructions of Lawrence he had conducted investigations intoseveral important persons including the Deputy General Manager towhom Monica had made certain representations against the appellant.He admitted that Monica came to his office on the 13th of July withanother woman (Violet) and had requested that that woman be givenemployment and that he asked for an application and then Monicasaid that the application could be given on Monday, and he told themthat he was on leave on Monday and suggested that Monica couldcome with that woman to his house on Monday, 16th of July withan application, and, if she was coming, to bring some informationregarding certain petitions he had received. He said even on prioroccasions Monica had supplied him with necessary information. Theappellant stated that he took leave for the 16th of July from Lawrenceas he had to attend to a function in the school of his child. On the16th morning whilst he was drying himself after a bath he heard hisdoor bell ringing. He opened the door and saw Monica and Violetand invited them to come inside. As he was not wearing a shirt hewent to the room to get a shirt and suddenly discovered Monicastanding beside him. When he questioned her as to what she wasdoing there she laughed and sat on the bed. At that moment fourpersons entered the room and announced that they were from theBribery Department. He denied that he kissed Monica or that hecaused her any harm.
It is now settled law that an unsworn statement must be treatedas evidence. (O v. Kularatnef'K K v. Sittampararri2>, Q v. BuddarakkithaP1,Gunapala v. The Republici*31). It has also been laid down that if theunsworn statement creates a reasonable doubt in the prosecution caseor if it is believed, then the accused should be given the benefit ofthat doubt.
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Sri Lanka Law Reports
[1998] 3 Sri L ft
The learned trial Judge rejected the dock statement in the followingterms: “I have endeavored to evaluate the dock statement with utmostconcern for the accused. I have to conclude that it is a tissue of liesconcocted by a desperate man situated in an inescapable predicamentof his own creation. It has entirely failed to create any doubt whateverin the prosecution case. “I am inclined to agree with the learned trialJudge on this matter. The appellant admits that it was he who hadinvited the women to come to his house. It is also a fact that thewife of the appellant was not present in the house on the 16th whenthe two women went there. Furthermore, it is rather questionable thatthe appellant suggests that they meet at his house merely to handover an application. Account must also be taken of the fact that theappellant has not denied Monica's evidence that when she questionedhim about her leave he had said that he would look after it. So also,when she questioned regarding the security guards at the ElivitigalaFlats, he had said that they would be removed. It is my view thatthe learned trial Judge has correctly rejected the dock statement ofthe appellant. The dock statement is not credible and nor does it createany reasonable doubt on the prosecution case.
With regard to the position taken up by the appellant that he wasnot an employee of the National Housing Development Authority theprosecution having obtained leave to lead evidence in rebuttal led theevidence of the Personnel Manager and succeeded in discrediting theaccused. The evidence was led to establish that the appellant sat intender Boards as Chairman representing the National Housing Devel-opment Authority during the relevant period. This position was notchallenged by the defence.
The next question raised by the counsel for the defence was withregard to the validity of counts two and four of the indictment.
As mentioned earlier there are four counts on the indictment. 1stand 3rd counts refer to the solicitation of the gratification and allegethat thereby the accused committed offenses punishable under section19 and 19(C) of the Bribery Act respectively.
The gratification that is alleged to have solicited by the accusedis "sexual intercourse". Section 90 of the Bribery Act defines
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Kathubdeen v. Republic of Sri Lanka (de Silva, J.)
117
gratification to include among other things, "any other service, favouror advantage of any descriptive whatsoever".
Dr. Gour in the Penal Law of India Vol. 1 has made the followingobservations “The word gratification is thus used in it’s larger senseas connoting anything which affords gratification or satisfaction orpleasure to the taste, appetite or the mind. Money is of course onesource of affording pleasure, inasmuch as it implies command overthings which afford gratification the satisfaction of ones desires, whetherof body or mind, is a gratification in the true sense of the term. Thecraving for an honorary distinction or for sexual intercourse is anexample of mental and bodily desires, the satisfaction of which isgratification which is not estimable in money".
The fact that the alleged act in counts 1 and 3, namely, "sexualintercourse" is a “gratification" within the meaning of the Bribery Actwas not disputed by the appellant and therefore no objection wasraised regarding counts one and three which deal with the solicitationof sexual intercourse.
According to count two the accused-appellant on 16.07.1993 in thecourse of the same transaction as referred to in count one, did attemptto have sexual intercourse with Monica de Silva and thereby committedan offence punishable under section 19 read with section 25(1) of.the Bribery Act.
Count four also refer to the attempt of the accused to have sexualintercourse and allege that thereby he committed an offencepunishable under section 19(C) read with section 25(1) of the BriberyAct.
Section 25(1) of the Bribery Act makes "attempts" to commitoffences specified in the act punishable under the same provisionswhich make the principle offences punishable.
Counts two and four cannot be read in isolation but have to beread in conjunction with count one. Therefore it is clear that in theinstant case reference to section 19 and 25(1)- in counts two and
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Sri Lanka Law Reports
[1998] 3 Sri LR.
section 19(C) and 25(1) in count four deal with a situation where theaccused had made an attempt to "accept0 the gratification, which hesolicited on 13.07.1990 as alleged in counts one and three in theindictment.
As pointed out by the Senior State Counsel who appeared for theAttorney General the evidence led at the trial clearly shows that theaccused-appellant on 16.07.1990 did attempt to have sexualintercourse with the main witness. It is evident that the appellant inthis attempt did several acts towards the commission of the offenceof acceptance of the gratification i.e. invited the main witness to visithis house at a time when all other inmates were out, called her intohis room, kissed her and removed the sarong he was wearing. Theonly and reasonable inference that could be drawn from these itemsof evidence is that the accused-appellant did attempt to accept thegratification he solicited as averred to in counts one and three.
In these circumstances I find that there is a legal and factual basisfor these changes.
For the reasons set out above I affirm the convictions on all fourcounts. In regard to the sentence the counsel brought to the noticeof court that after conviction the appellant was in custody for nearlytwo years until this court enlarged him on bail on 26.07.1996. In thecircumstances I affirm the sentence of two years rigorous imprisonmentimposed on counts one and three of the indictment. I set aside thesentence of seven years rigorous imprisonment imposed on countstwo and four and in lieu of, I impose a sentence of three years rigorousimprisonment on each count. The sentences are to run concurrently.The fine and the default sentence imposed by the learned High CourtJudge will remain. Subject to the above variation in the sentencesas above, the appeal is dismissed.
ISMAIL. J, (P/CA) – I agree.
Appeal dismissed.