CA Nishantha Janaka v The Attorney-General (Nanayakkara J.)413
NISHANTHA JANAKAvTHE ATTORNEY-GENERALCOURT OF APPEALNANAYAKKARA, J. ANDBALAPATABENDI, J.
H.C. KURUNEGALA 114/2000JUNE 12,
JULY 22, ANDAUGUST 25, 2003
Penal Code, section 364(2)(f) – Conviction on wrong charge – Proper charge- Section 364(2)(c) – Amending Act, No. 22 of 1995 – Has it caused a mis-carriage of justice? – Code of Criminal Procedure Act, No. 15of 1979, sections328(b)(ii) and 334(4)(s).
The accused-appellant was charged with having committed rape, an offencepunishable under section 364(2)(f) and was convicted.
It’ was contended that the offence with which the accused-appellant wascharged could be committed only in respect of a woman who has some phys-ical and mental disability and the failure to establish the said disability vitiatesthe conviction.
i) Alleged defect in the charge has not in any manner caused a miscar-riage of justice as to vitiate the conviction; defects of this nature are
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always curable by having recourse to section 328(b)(ii) of the CriminalProcedure Code, although the evidence in the case in no way indicatethe prosecurtrix was under any physical or mental disability as con-templated by the section with which the accused-appellant wascharged at the trial.
APPEAL from the judgment of the High Court of Kurunegala
D.K.Dhanapala for accused-appellant.
Suhada Gamlath, Deputy Solicitor-General for Attorney-General
March 9th, 2004NANAYAKKARA, J.
The accused-appellant in this case was charged at the High 01,Court of Kurunegala, with having committed rape on L.P.D.NilminiNuwansiri Rajapaksa, an offence punishable under section364(2)(f) of the Penal Code.
At the end of the trial, the learned trial judge convicted theaccused-appellant of the charge preferred against him and sen-tence him to 10 years R.l. and a fine of Rs. 2500/-. The accused-appellant was also ordered to pay compensation in a sum of Rs.5000/-
The main ground on which the conviction and sentence in the i0case is assailed is that the accused-appellant was convicted on awrong charge.
At the hearing of the appeal it was contended on behalf of theaccused-appellant that the offence with which the accused-appel-lant was charged could be committed only in respect of a womanwho has some physical and mental disability and the failure of theprosecution to establish such disability on the part of the pros-ecutrix in this case vitiates the conviction in the case.
It was also contended that the conviction entered against theaccused-appellant in the absence of evidence that the prosecutrix 2o
Nishantha Janaka v The Attorney-General (Nanayakkara J.) 415
was under a physical or mental disability as contemplated by thepenal section with which he was charged has caused him a graveprejudice, and resulted in a.miscarriage of justice.
It would now be necessary at this stage to consider the validityof this argument advanced on behalf of the accused-appellant. Assubmitted by the learned Counsel for the accused-appellant, aclose examination of the proceedings reveals that the evidence inthe case in no way indicates the prosecutrix in this case was underany physical or mental disability as contemplated by the penal sec-tion with which the accused-appellant was charged at the trial. 30Therefore the question that has to be determined is whether theabsence of such evidence has vitiated in any manner the convic-tion and the sentence entered in the case.
It is true, the proper charge that should have been broughtagainst the accuse.d-appellant was under section 364(2)(c) of thePenal Code (Amendment) Act, No. 22 of 1995 and not under sec-tion 364(2)(f) of the Code, under which the accused-appellant wascharged at the trial.
The learned Counsel for the State too has conceded this posi-tion and has attributed this lapse to a typographical error which has 40escaped the attention of both the trial judge and the counsel for theState.
Whatever the cause, in my view the alleged defect in the chargehas not in any manner caused a miscarriage of justice so as to viti-ate the conviction in the case. Besides defects of this nature arealways curable by having recourse to the provisions of the section328(b)(ii) of the Code of Criminal Procedure. This section has con-ferred wide powers on the Court of Appeal to rectify defaults ordefects of this nature.
Section 334(4) and (5) of the Code of Criminal Procedure Act sowould also be relevant to' the matter.
“(4) If it appears to the Court of Appeal that an appellant,though not properly convicted on some charge or part ofthe indictment, has been properly convicted on someother charge or part of the indictment, the court mayeither affirm the sentence passed on the appellant at thetrial or pass such sentence in substitution therefor as it
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thinks proper and as may be warranted in law by the ver-dict on the charge or part of the indictment on which thecourt considers that the appellant has been properly con- 60victed.”
“(5) Where an appellant has been convicted of an offenceand the jury could on the indictment have found him guiltyof some other offence, and on the verdict of the jury itappears to the Court of Appeal that the jury must havebeen satisfied of facts which proved him guilty of thatother offence the court may, instead of allowing or dis-missing the appeal, substitute for the verdict found by thejury a verdict of guilt for that other offence and pass suchsentence in substitution for the sentence passed at the 70trial as may be warranted in law for that other offence, notbeing a sentence of greater severity."
Apart from the ground discussed above, the judgment has notbeen assailed on any other substantial ground.
Therefore I see no reason to interfere with the conviction andsentence entered in this case. Accordingly the appeal is dismissedand the conviction and sentence affirmed.
BALAPATABENDI, J. – I agree.
NISHANTHA JANAKA v. THE ATTORNEY-GENERAL