PREMASIRI vs. ATTORNEY GENERAL

016-SLLR-SLLR-2006-V-3-PREMASIRI-vs.-ATTORNEY-GENERAL.pdf


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PREMASIRIVSATTORNEY GENERALCOURT OF APPEAL,
BALAPATABENDIJ., (P/CA),
BASNAYAKEJ.,
C.A. NO. 59/2001.
HC 24/99.
APRIL 26,2004.
AUGUST 31,2004.
FEBRUARY 2,2006.
MARCH 16,2006.
Penal Code – Section 367 – Amended by Act No. 22 of 1995 – Section 364(2) -Corroboration – Rape – Is It necessary?-ls it dangerous to convict on theevidence of the prosecutrix alone?
HELD:
There is no rule that there must be corroboration in every case,before a conviction can be allowed to stand.
It is well settled law that a conviction for the offence of rape can bebased on the sole testimony of the prosecutrix, if it is reliable,unimpeachable and there is no infirmity;
If evidence of the prosecutrix inspires confidence, it must be reliedupon without seeking corroboration of her statement in materialparticulars. The testimony of the prosecutrix must be appreciatedin the background of the entire case and the trial court must bealive to its responsibility and be sensitive while dealing with casesinvolving sexual molestation;
The rule is not that corroboration is essential before there can bea conviction in a case of rape but the necessity of corroborationas a matter of prudence except where the circumstances makesit unsafe to dispense with it, must be present to the mind of thejudge.
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Premasiri Vs. Attorney General (Eric Basnayake. J.)
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Appeal from the judgment of the High Court.
Cases referred to>
Haramanis vs Somalatha (1998) 3 SLR 365
Raghutbgr Singh vs State – (1961) All Cri. R 163
Rameshawer Kalyan Singh vs State of Rajasthan – 1R 1952 S. C. 54
Bhola Ram vs State of Madhya Pradesh (1998) CrLJ 2167 at 2169 (MP)
State of Punjab vs Gurmit Singh (1996) I Bom. Or. 322 at 337
Schindra Nath Biswas vs State (1985) 1 Crimes 505 at 510 (Cal)
Sunil and another vs The Attorney General – (1986) 1 Sri LR 230
D.P.P vs Hester (1973) AC 296 at 315 (HQ
D.P.P vs Kilboume (1973) A. C. 729 at 746 (H. L)
Rex vs Manning (1969) 53 CrAppl. R 150 at 153
Mallika Prematilake with Punya Jayatilake for 1st Accused Appellant.
Mohan Seneviratne S. S. C. with R. Aslam, S. C., for Attorney General.
Cur. adv. vult.
October 18, 2006ERIC BASNAYAKE J.,
The accused appellant (accused) was indicted with two others forabducting Nadeeka Priyangani, punishable under Section 357 of the PenalCode, for committing the offence of rape, punishable under Section 364(2)of the Penal Code as amended by Act No.22 of 1995. The 3rd accusedwas charged for aiding and abetting. After trial the accused was convictedas charged and sentenced to two years rigorous imprisonment and a fineof Rs. 2000 was imposed on the first charge and ten years R. I. and a fineof Rs.2000 on the 2nd charge. He was also imposed a sum of Rs.15,000as compensation for the victim. The 2nd accused was tried on a fiat. The2nd accused was imposed a sentence of five years.
The 3rd accused was acquitted. The first accused appealed against theconviction and the sentence.
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The learned counsel appearing for the accused submitted that
The prosecution had failed to prove beyond reasonable doubt theact of sexual intercourse.
The evidence of the prosecutrix was not corroborated withindependent evidence
The complaint of rape is a fabrication and a belated one.
As it is evident by the birth certificate marked P1, the procecutrix wasborn on 1.12.1981. The date of the incident is 23.08.1996. Accordingly theage of the prosectrix was 14 years 9 months and 22 days at the time ofthe incident. The only question that has to be decided is whether the actof sexual intercourse was proved beyond reasonable doubt. Admittedlythe prosecutrix had had a love affair with the accused. The accused is aclose relation of the prosecutrix. The parents of the girl had objected tothis affair. According to the evidence while the girl was returning homefrom school, she was taken in a three wheeler and thereafter on a motorbike by the accused to the 3rd accused house. There the girl had got intoa change of clothes and slept with the accused in a room where they hadengaged in sexual intercourse. Later the girl’s father had arrived and takenthe girl home. This was on 23.08.1996. On the 23rd itself a complaint ofabduction was made to the police. A complaint of rape was made on.06.09.1996.
According to the medical evidence the girl’s hymen was torn. Thisindicates the fact of having been engaged in sexual intercourse. Then whydidn’t the girl tell her mother about the incident on the 23rd itself? The girlwould not have wanted to disclose the piece of information regarding sexualintercourse, as the accused was her boy friend. The girl had told themother on 04.09.1996 that she had sex with the accused on 23rd August.Then what made her disclose this fact on 04.09.1996? the girl’s parentshad arranged for the girl to be taken to an aunt’s place on 4th September,before that the accused had made an attempt to take the girl away byforce. This did not materialize. Hence the girl came out with what happenedon the 23rd of August.
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Premaslri Vs. Attorney General (Eric Basnayake. J.)
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The accused admitted to having taken the girl on the 23rd and also theincident as regards the 4th September, in his dock statement. The girl’smother said in evidence that a complaint of rape was not made on the23rd, as the girl had not disclosed such fact at the time such complaintwas made on the 23rd. She further said that considering that the accusedis a relation and also the embarrassment that will be caused and theprotracted trial, the complaint was not pursued. However a complaint ofabduction was made on the 23rd. A complaint of rape was made after itwas disclosed by the girl on the 4th. Soon thereafter she was examinedby a doctor who confirmed that her hymen was tom to indicate that asexual act had taken place.
The accused in the dock statement said that the girl slept at night withthe wife of the 3rd accused in the room. This is to indicate although she waswith him, there was no sexual activity. The girl gave evidence to the effect ofhaving had sexual intercourse in the room with the accused. She was crossexamined by a counsel appearing for the accused. She was not questionedon the basis that she slept with the wife of the 3rd accused. Therefore theevidence that the girl did not sleep with the accused was not believed by thelearned High Court judge. If the accused admitted that he slept with the girlin the room, and that he did not have sex with her, no one would have belivedhim. This may be the reason why he denied to having slept with her in theroom. If the accused said the truth that he slept in the room with the girl thatwould have sealed his fate (Haramanis vs. Somalatha)
This case was filed on the basis that the accused had sexual intercoursewith the prosecutrix. The prosecutrix being under aged there is no issuewith regard to her giving consent. The only issue therefore is whether thethere was sexual intercourse. There is no dispute with regard to the followingfacts nameiy
The fact of the accused having a love affair with the prosecutrix
The fact of the accused taking the girl to the 3rd accused's place
The girl was brought by the father of the prosecutrix while she waswith the acccused in the 3rd accused’s house.
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The fact that the accused made a futile attempt to take the girl byforce with him on 04.09.1996.
Thereafter the girl revealing to the mother of her having had sexualintercourse with the accused on the 23rd August.
This leading to the making of a complaint of rape to the police.
The girl’s hymen was found torn.
The girl was 14 years and 9 months and 22 days on 23rd August.
The defence of the accused is that he did not have sexual intercourse. Thedefence is that there was no possibility of having sexual intercourse with herthat night as the girl slept with the 3rd accused’s wife in the room while theaccused slept in the hall with the 3rd accused. If that was the case theaccused could have easily demolished the prosecution case by questioningthe girl. Not a single question was put to the girl on that basis. It was noteven suggested to the girl that she slept with the wife of the 3rd accused.When the girl said in evidence that she slept with the accused in the roomthat night and that she had sexual intercourse with the accused, the onlysuggestion that was made in cross examination was that sexual intercoursemight have taken place either before or after the 23rd but that the accuseddid not have sexual intercourse with her on the 23rd night. The fact of the girlsleeping with the wife of the 3rd accused therefore appears to be on anafterthought.
Requirement of CorroborationThe learned counsel complained that the accused was convicted onuncorroborated evidence. There is no rule that there must in every case, becorroboration before a conviction can be allowed to stand. (Gour on PenalLaw of India 11th Edition page 2657 quoting Raghobgr Singhe vs. State ;Rameshwar, Kalyan Singh vs. State of Rajasthan0). It is well settled lawthat a conviction for the offence of rape can be based on the sole testimonyof the prosecutrix if it is reliable, unimpeachable and there is no infirmity.(Bhola Ram vs. State of Madhya Pradesh) . If the evidence of the prosecutrixinspires confidence, it must be relied upon without seeking corroboration ofher statement in material particular. The testimony of the prosecutrix must
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Premasiri Vs. Attorney General (Eric Basnayake. J.)
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be appreciated in the background of the entire case and the trial court mustbe alive to its responsibility and be sensitive while dealing with casesinvolving sexual molestation. State of Punjab vs. Gurmit Slngheis)
The rule is not that corroboration is essential before there can be a convictionin a case of rape, but the necessity of corroboration as a matter of prudence,except where the circumstances make it unsafe to dispense with it, mustbe present to the mind of the judge. (Schindra Nath Biswas vs. State{6). InSunil and another vs. the Attorney – General Dheeraratne J. with H. A. G.De Silva and Ramanathan JJ agreeing held that “if the evidence of thecomplainant is so convincing, they could act on that evidence alone, evenin the absence of her evidence being corroborated”.
“The essence of corroboration is that one creditworthy witness confirmswhat another creditworthy witness has said. Any risk of conviction of aninnocent person is lessened if conviction is based upon the testimony ofmore that one acceptable witness. Corroborative evidence in the sense ofsome other material evidence in support implicating the accused furnishesa safeguard which makes a conclusion more sure than it would be withoutsuch evidence…. The purpose of corroborating is not to give validity orcredence to evidence which is deficient or suspect or incredible but onlyto confirm and support that which as evidence is sufficient and satisfactoryand credible; and corroborative evidence will only fill its role if it self iscompletely credible evidence” (Lord Morris of Borth – Y-Gest in DPP vsHester(8) cited with approval by Dheeraratne J in Sunil Vs. A. G (supra)
“Corroboration is only required or afforded if the witness requiringcorroboration or giving it is otherwise credible. If his evidence is not credible,a witness’s testimony should be rejected and the accused acquitted, evenif there could be found evidence capable of being corroborated in othertestimony. Corroboration can only be afforded to or by a witness who isotherwise to be believed. If a witness’s testimony falls of his own inanitionthe question of his needing, or being capable of giving corroboration doesnot arise. Lord Hailsham in D. P. P. vs. Kilbourne) cited in Sunil's Case(supra m)
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“In cases of sexual offences it is really dangerous to convict on theevidence of the woman or girl alone. This is dangerous because humanexperience has shown that in these courts girls and women do sometimestell an entirely false story which is very easy to fabricate, but extremelydifficult to refute. Such stories are fabricated for all sorts of reasons… andfor sometimes for no reason at all. The Judge… having given foil weight tothe warning…. comes to the conclusion that in the particular casethe woman or girl without any real doubt is speaking the truth,then the fact that there is no corroboration matters not at all" Salmon LJRex vs. Manning<10).
The Learned judge had believed the evidence of the prosecutrix as herevidence was convincing. However I find that there is corroboration in thiscase. The fact of taking the girl after school without the consent of theparents to the 3rd accused house, the fact of finding the accused with thegirl in the dead of night at the 3rd accused’ house quite a distance awayfrom where the girl lived, the fact that the accused tried to take the girtaway again about ten days after the first incident have been corroborated.Thus I find no merit in this appeal and therefore the appeal is dismissed.
On considering the facts of this case I am of the view that the convictioncould be allowed to take effect from the date of the conviction, namely on
The other sentences stand.
BALAPATABENDI, J.— I agree.
Appeal dim'ssed.