R. K. A. INDRATILAKA V. THE STATE

026-SLLR-SLLR-1981-2-R.-K.-A.-INDRATILAKA-V.-THE-STATE.pdf


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R.K. A. INDRATILAKA
V.
THE STATE
In the Court of Appeal,
Colin – Thome, J. (President), Tambiah J & L. H.de Aiwa J.
C. A. 29-31/81
H. C. Kegalle No. 176/77
May 6 & 7. 1981
Rape and attempted rape. Sec.364 of the Penal Code and Sec. 364 read with s.490-Conviction based on circumstantial evidence competency of an Ayurvedic Doctorregarding nature of injury – when facts proved rape, conviction of attempted rape asindicted — no prejudice to accused — circumstantial evidence by conduct of accused,(Sec. 8 of Evidence Ordinance) – Sec. 27 of Evidence Ordinance.
The evidence in regard to the identity'of the 3rd accused appellant wasentirely circumstantial. He was not known to the girl, Premawathie nor hadshe given a previous description of him. One of the items of evdence thatconnects him with the offence 6n Premawathie is that he bore a cut injuryon his nose.
He gave three different versions as to how he came by that injury on hisnose to three prosecution witnesses who saw him that night. His story of afall on the railway line was ruled out by Dr. Herath and the appellant wascompelled to admit that it was an incised injury.
He was arrested about seven days after the alleged incident by a PoliceConstable who lay in ambush. The car in which the 3rd appellant travelledwhen signalled to halt proceeded without stopping and the P. C. gave chasein his vehicle and caught up with the car. The appellant then attempted toru n away.
A knife was recovered by the Police on a statement made by 3rd appellantto the Police. It was submitted by Counsel for the appellants that the state-ment leading to the discovery of the knife was irrelevant since the knifehad not been shown to Premawathie and identified as the one with whichshe inflicted the injury. But the knife was shown to Or. Herath and he hadexpressed the opinion that the injury on the nose of the 3rd accused-appe-llant could have been caused by a hard blow with it.
Held—
In the circumstances the statement made by the 3rd accused-appellant under
Sec. 27 of the Evidence Ordinance is relevant.
There was ample evidence to find the three appellants guilty of the charges against
them.
One of the charges framed against the 3rd accused-appellant was for theattempted rape of Premawathie, but Premawathie's evidence was that shewas raped. It was submitted that the indictment has been drafted on thebasis of the statement made by Premawathie to the Police and the sugges-tion was made that the evidence she gave in Court, was different from thestatement she made to the Police.
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Premawathie's statement to the Police was available to the defence and ifthere were any discrepancies in it. they would certainly have been elicitedby the defence.
Learned Counsel next submitted that 3rd accused-appellant was prejudicedin having to face a charge of attempted rape, when the evidence againsthim was one of rape. It was submitted that in rape intention is not issue,whereas in a charge of attempted rape intention is a necessary ingredientwhich the appellant has been called upon to meet.
Hald.
The intention there, is the intention to commit the particular offence ofrape. An attempt is a stage in the commission of an offence which commen-ces with intention and preparation and culminates in the completed offence.The maximum period of imprisonment for the offence of rape is 20 years,whereas for attempted rape it is only half that term. Attempted rape, there-fore, is in essence a lesser offence than rape and the 3rd accused — appellantfar from being prejudiced stands to benefit bv being indicted on a lessercharge than that established on the evidence.
Held Also
According to the evidence of each of the three girls there were at least fivepersons who abducted Magilin and Premawathie and they constituted anunlawful assembly. The learned trial judge hasetplained adequately to thejury the nature of the various offences with which the appellants have beencharged and the legal principles involved therein. We are opinion that thereis ample evidence on which the jury were entitled to find the three appel-lants guilty of the charges brought against them.
Dr. Colvin R. de Silva with Mrs. M. Muttetuwegama and fo. V. de Silva for the 1st,3rdand 4th accused appellants.
G. L. M. de Silva S.S.C. for the Attorney-General.
cur. adv. vult.
June 8,1981
L. H. DE ALWIS, J
The 1st, 3rd and 4th accused-appellants together with the 2nd and5th accused were charged on 9 Counts in the amended indictmentas follows:
That on or about 25. 7. 74 at Warakapola the 1st, 2nd,3rd and 5th accused with others unknown to theprosecution were members of an unlawful assembly thecommon object of which was to abduct H. K. Prema-wathie and R. P. Magilin in order that they may forcedto illicit intercourse an offence punishable under section140 of the Penal Code;
That at the same time and place aforesaid and in thecourse of the same transaction one or more members ofthe unlawful assembly, in prosecution of the common
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object of the unlawful assembly did abduct R. P.Magilin, an offence punishable under section 357 readwith section 146 of the Penal Code.
That at the same time and place aforesaid and in thecourse of the same' transaction one or more membersof the unlawful assembly in prosecution of the commonobject of the unlawful assembly did abduct H. K.Premawathie, an offence punishable under section 357read with section 146 of the Penal Code;
That at the same time and place aforesaid and in thecourse of the same transaction they did abduct H. P.Magilin in order that she may be forced to illicit inter-course, an offence punishable under section 357 readwith section 32 of the Penal Code;
That at the same time and place aforesaid and in thecourse of the same transaction they did abduct H. K.Premawathie in order that she may be forced to illicitintercourse, an offence punishable under section 357read with section 32 of the Penal Code;
That the 1st accused did commit rape on R. P. Magilin,an offence punishable under section 364 of the PenalCode;
That the 4th accused did commit rape on H. K. Prema-wathie, an offence punishable under section 364 of thePenal Code;
That the 2nd accused did attempt- to commit rape onH. K. Premawathie, an offence punishable under section364 read with section 490 of the Penal Code;
That the 3rd accused did attempt to commit rape onH. K. Premawathie, an offence punishable under section364 read with section 490 of the Penal Code.
At the close of the prosecution case the 2nd and 5th accusedwere found not guilty by an unanimous verdict of the jury on allthe charges preferred against them and were acquitted.
At the conclusion of the trial, the Jury by an unanimousverdict found the 1st accused guilty on Counts 1, 2, 3, 4, 5 and6; the 3rd accused-appellant guilty on Counts 1, 2, 3, 4, 5 and 9;and the 4th accused guilty on Count 7. The 1st accused wassentenced to 6 months' rigorous imprisonment on Count 1, 4years' rigorous imprisonment on each of the Counts 2 to 5 and 12
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years' rigorous imprisonment on Count 6, sentences to run con-currently. The 3rd accused was sentenced to 6 months' rigorousimprisonment on Count 1, 4 years' rigorous imprisonment oneach of the Counts 2 to 5, and 10 years' rigorous imprisonment onCount 9, sentences to run concurrently. The 4th accused wassentenced to 12 years' rigorous imprisonment on Count 7. The1st, 3rd and 4th accused have appealed against their convictionsand sentences.
The victims of these offences were two young girls, Magilin,aged about 17 years at the time and Premawathie 16 years of age.Premawathie had been living with her father at Giriulla from herinfancy, after her mother had deserted them and was brought backby her father along with her younger sister Somalatha, to thehouse of her mother Pini at Paspolakande about a week before thisincident. Magilin was an orphan and had no brothers or sisters.She happened to be living with her aunt Pini at the time Premawa-thie and her sisters came to live with their mother.
On the day fin question Magilin who was the eldest of thesegirls had arranged to meet her boy friend, Sirisena, at a Carnival inAlawwa Town, about a mile and a half from their home. Sheinvited Premawathie and her younger sister Somalatha to join herand the three girls set out on foot from their home at about
o'clock in the evening to go to the Carnival. They met Sirisenaoutside the Carnival grounds and he bought their tickets and tookthem inside. After doing the round of the Carnival they set out togo home at about 8.30 or 9.00 p.m. Sirisena parted company fromthem and went his way home. The three girls came by themselvesto the bus stand in order to take a bus home but found that thelast bus had already left. They therefore set out on foot. Afterthey had proceeded some distance, Magilin says that she noticed
or 7 men with their heads covered with gunny bags about 30feet behind them. Suddenly these men came running up to themand two of them lifted her by her shoulders and legs while threeothers lifted Premawathie. They struggled and raised cries but nohelp was forthcoming, as the road was deserted and there wereno street lights. Magilin goes on to say that she was carried alonga narrow sandy road up to a bridge and placed on the ground bythe side of the road. One of the men then raised her gown and goton her body. She struggled fiercely but was unable to escape fromthe clutches of her assailant. She says that the man inserted hispenis into her vagina and had sexual intercourse with her againsther will. When he was getting ready to have intercourse with heragain, she saw her younger sister Premawathie coming ui the spotand she appealed to her to rescue her. That man then wenttowards her sister and Magilin jumped up and ran to the Nelundeniya tarred road. There she met a cyclist who was passing by onthe road and asked his assistance to trace Premawathie. The little
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girl Somaiatha was with the cyclist. Together they went to theAlawwa Police Station but were informed that the place ofincident was outside their jurisdiction and were directed to theWarakapola Police Station. A passing lorry was stopped and theywere put into it. On reaching the Warakapola Police Station,Magilin made a complaint of what had happened and was broughtby Sub-Inspector Serasinghe and two other Police Constablesin a Police Jeep to the place where this incident had occurred. Asthey were approaching the bridge, two or three men who werenear the bridge started to run. The Police Officers stopped theJeep and gave chase and arrested one of the men. He was broughtup to the Jeep and shown to Magilin and she identified him as theman who raped her. He is the 1st accused appellant.
Premawathie's evidence is that after she was lifted by the threemen she was carried to a garden where a cremation had takenplace. She was lifted over the fence and put on the ground and thethree men crept through the fence into the garden. One of themen put her down on the ground, raised her gown, got on herbody and had sexual intercourse with her forcibly. This man hada knife in his hand and threatened her not to shout. While he wason her body the knife that he had in his hand fell on her leg.She seized the knife and stabbed him on the nose with it. The manthen rolled off her body on to the ground and she got up. Twoother persons then came up to her and attempted to put herdown on the ground. She stabbed at them with the knife and feltthat the knife had struck both. Thereafter the three men wentaway. When she found herself alone in the garden she went insearch of Magilin and Somaiatha. Three men who were under aBonlax tree with gunny bags over their heads suddenly stoodup and one of them came and closed her eyes with his hands.All of them lifted her and carried her to a room. She was placedon a bed like a camp bed. The door was closed, her clothes wereremoved and she was ravished by one of them. After he hadfinished he went out of the room and another person came in.This person spread a sheet on the ground and placed her on it andhad sexual intercourse with her against her will. She resisted anddid not know what happened thereafter. Later when it was dawnthe Police broke into the room and rescued her. The 4th accused-appellant was at the time lying on the sheet hugging her. She saidthat he was the man who first had sexual intercourse with heronthe camp bed when she was brought into the room. She identi-fied him by his features and by the fact he was wearing a pair oflong trousers at the time he first raped her.
Somaiatha who was about 8 years old at the time said thatwhen her two sisters were carried away by a gang of about fivemen wearing gunny bags over their heads, she jumped into a drainthrough fear and hid. Sometime later she saw a bicylce light
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approaching and came on the road. She met the cyclist and toldhim that her two elder sisters had been carried away by some menand asked him to find her mother. The cyclist put her on the cycleand said he was going to the Police Station. On the way they metMagilin by the road side and together with her they went to theAlawwa Police Station and from there to the Warakapola PoliceStation.
The cyclist is witness Vipulasena who lived at Opatha and rana bicycle repair shop at Alawwa. On the day in question he hadgone to Alawwa town to see a picture but instead had met friendsand had spoken with them till about 12.45 a.m. He then set out togo home on his bicylce which had a lamp. While he was proceedingalong Nelundeniya road he met the little girl Somalatha at aculvert and she complained to him that some unknown personshad carried away her two elder sisters. He put her on the bicycleand set out towards Alawwa town. On the way they met the othergirl Magilin by the roadside. He then brought the two girls to theAlawwa Police Station and from there took them to the Waraka-pola Police Station.
Sub-Inspector Serasinghe stated that Magilin accompanied byVipulasena and Somalatha came to the Warakapola Police Stationat about 2.10 a.m. on 26.7.74 and made a complaint. He left theStation for inquiry at 2.40 a.m. along with Police ConstablesPiyadasa and Silva. As they were approaching the place ofincident, he saw three persons who were standing in front of a rowof boutiques at the Wariyagoda Junction suddenly taking to theirheels. He stopped the jeep and gave chase with the PoliceConstables. He was able to arrest one of the men who was the1st accused-appellant. He brought him up to the Police Jeep andshowed him to Magilin.
Both Magilin and Premawathie and the 1st and 4th accused-appellants were produced by the Police before the O. M.O. Kegallefor examination. The D. M. 0. Dr. Perera examined Magilin at1.20 a.m. on 26.7.74 and found the following injuries:
a linear abrasion 1 %" long on the right thigh;
a lacerated injury VA” long on the left labia majora.
a lacerated injury 1 %" on the right labia majora
a tear of the hymen at 1 o'clock and 7 o'clock positions.
The tear was recent and was bleeding. He was of the view thatinjuries 1 and 2 were scrape or finger nail marks caused in aneffort to stretch out the thighs. Injury 3 he said, could have beencaused in an attempt to open the tips of the labia and injury 4could have been caused in an attempt at forcible intercourse. In his
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view injury 4 could have been sustained within 24 hours of hisexamination.
Premawathie was examined at 1.00 p.m. that day and she hadthe following injuries:
lacerated wound 1" by V2" on the left buttock withmultiple abrasions on both buttocks,
curved linear abrasion on the left thigh adjoining the leftlabia majora
tear of the hymen at 3 o'clock and 8 o'clock positions.
There was a superficial lacerated wound on the vulva belowthe clitoris with recent bleeding from hymen.
lacerated wound 2” long on the left big toe.
He was of the opinion that injury 1 could have been caused ona rough surface like sandy ground. Injury 2 could have beencaused by nail marks in an attempt to spread out the thighs.Injury 3 could have been caused by forcible intercourse. Injury 4could have been caused as a result of a struggle on a rough surface.He further said that all the injuries could have been sustainedwithin 24 hours of his examination and that injuries 1 and 4 couldhave been caused while struggling on rough ground. The injurieson the hymen suggested that several acts of sexual intercourse hadtaken place recently.
The 1st and 4th accused-appellants also had injuries on theirsexual organs. The 1st accused-appellant had :
redness of the glans penis
2 curved abrasions on the body of the penis.
The Doctor was of the view that injury 1 could have beencaused by pressure on the spongy glans tissue and injury 2.appeared to be scrape or finger nail marks inflicted by the victimwhile resisting. He was of the view that these injuries could havebeen sustained within 24 hours of his examination.
The 4th accused-appellant had the following injuries:
contusion and redness over prepuce of the penis'
4 linear abrasions over the glans penis
dried blood stains over penis and pubic hair
lacerated wound V/*," long over left side of head withcontusion.
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The doctor was of the opinion that injury 1 could have beencaused by. forcing the penis into the cervix. Injury 2 could havebeen caused by finger nails of a woman while resisting. All theinjuries were consistent with the appellant having had sexualintercourse with a woman, and could have been sustained within24 hours of his examination.
The 3rd accused appellant was arrested on 2.8.74 P.C. Piyada-sa said that he remained in the Wariyagoda area from about 8.45a.m. till about 2.30 p.m. tjiat day. At about 1.30 p.m. he sawa car approaching along the road near the bridge at Wariyagodajunction with the 3rd accused-appellant inside. He signalled thecar to stop but it proceeded without stopping. He gave chase. Atthe same time a lorry happened to come from the oppositedirection and blocked the path of that car. The Constable alightedfrom his car and went up to the other car and arrested the 3rdaccused-appellant. The 3rd accused-appellant was at the timegetting ready to run away. He was seated in the front seat by thedriver, and had a piece of sticking plaster on his nose.
The constable recorded the statement of the 3rd accused-appellant at the Police Station at 6.10 p.m. that day. The 3rdaccused-appellant made a statement (P12) as follows: "Can showthe knife." In consequence of that statement the police constablewent with the 3rd accused-appellant to Hettigahawatte in Alawwaand recovered a knife buried under a stone by the side of the road.The spot was pointed out to him by the 3rd accused-appellant.
Three witnesses were called by the prosecution to speak to theinjury on the 3rd accused-appellant's nose. Karunaratne, the ChiefDispenser of the Ideal Dispensary, Alawwa stated that he knewthe 3rd accused-appellant for about 15 years. He said that the 3rdaccused-appellant came to his dispensary with several others one.night sometime after 10 o'clock. He had an injury on his nose andwanted it dressed. On being questioned he said that it was causedwith a piece of glass. The injury was bleeding at the time and thewitness gave him a piece of cotton wool to place on it. As thedoctor was not in he advised the 3rd accused-appellant to go toHospital and get his injury attended to. There was anotherperson with him who also had an injury on his shoulder. The 3rdaccused appellant said that he had cut himself with a piece of glassand had stabbed the other man with a screw driver.
The next witness is Mitrananda, a Technician, working in theSarasavi Cinema, Alawwa close to the Ideal Dispensary. He saidthat one day at about 12.30 a.m. he heard a loud knocking on thedoor of the dispensary and came out to see what the disturbancewas. He saw the 3rd accused-appellant at the dispensary door.
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He had a bleeding injury on his nose. On asking him how hesustained the injury the 3rd accused-appellant replied that he fellon the railway line. He knew the 3rd accused-appellant fromhis young days.
Neither of these two witnesses is able to give the exact day orthe year when the 3rd accused-appellant came to the dispensary.But another witness, Dr. Herath has fixed the date beyond anydoubt as the night of the 25th/26th July, 1974. He is a doctor ofIndigenous Medicine and was at the time assisting one Dr.Fernando in his dispensary at Alawwa. He had come to Alawwa on23.7.74 and had left on 26.7.74 at about 2.00 p.m. He said thaton the 25th at about 7.30 p.m. he closed the dispensary andretired for the night. At 12.30 a.m. he heard someone knocking atthe door and opened it to find the Cinema Technician Mithranan-da with the 3rd accused-appellant. The 3rd accused-appellant hada blood stained injury on his nose and wanted it dressed. He askedhim how he came by the injury and the latter replied that he fellon the railway line. He examined the injury and found it was a cutinjury. He thereupon questioned the 3rd accused-appellant againand asked him to speak the truth. The 3rd accused-appellantthen said that he was cut with a sword by an enemy of his. Thedoctor told him that he could not treat him and advised him to goto hospital to get the injury dressed.
Each of the three appellants made a statement from the dockdenying his guilt. The 1st accused-appellant said that he knewnothing about the incident and was arrested by the Police when hewas sleeping inside his boutique room that night.
The 3rd accused-appellant who is a van driver said that he wasreturning home after work along the railway line when he fell andsustained an injury on his nose. He went home and came back tothe Ideal Dispensary for treatment. He was not given anytreatment but was only given a piece of cotton wool to be placedon the injury. About 10-12 days later when he was on his way tothe garage where he had given his van for repairs, he was arrestedby .the Police.
The 4th accused-appellant said that he was sleeping in hisroom on the night in question, when the Police Inspector knockedat the door and put him up. The door was opened and the Inspec-tor entered it with a girl. He was arrested and taken to the PoliceJeep.
Learned Counsel for the Appellants raised four points in thecourse of his argument before us. He submitted (1) that theidentity of the 1st and 3rd accused-appellants has not been establi-
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shed beyond reasonable doubt; (2) that there are seriousdiscrepancies in the evidence of the prosecution witnesses, whichrender the prosecution case unreliable; (3) that the statementmade by the 3rd accused-appellant to S. I. Serasinghe leading tothe discovery of the knife is irrelevant and its admission inevidence has caused grave prejudice to the appellant; (4) that the3rd accused appellant has been prejudiced by being called upon toface a charge of attempted rape when the evidence led at the trialwas one of rape.
With regard to the identity of the appellants, it was submittedthtat the place where the girls were set upon on the road was verydark and their assailants' heads were covered with gunny bags toavoid identification. Magilin had not known or seen the 1staccused-appellant prior to that day. But there was moonlightthat night and there is evidence that Magilin had ample opportu-nity of identifying the appellant who raped her. The whole inci-dent would have taken a considerable period of time, whichMagilin puts at over half an hour. During that period the 1stappellant was in very close proximity to Magilin and would havebeen clearly seen by her. Magilin further says that while he waslying on her body he kissed her face and although she turned herface she did not close her eyes. Moreover at the time the appe-llant was having sexual intercourse with her he had removed thegunny bag from his head.
The 1st appellant immediately on arrest was brought to theJeep by’S.I. Serasinghe and was identified by Magilin as the manwho raped her. It was submitted that she had not previously givena description of the 1st appellant in her statement to the Policeand that therefore her identification of him was of no value. Infact Magilin and witness Vipulasena stated that Magilin's state-ment was not recorded at the Warakapola Police Station when shewent there early that morning and made a complaint. Accor-ding to them their statements were recorded long after the 1staccused-pppellant was arrested. It was further submitted that ifMagilin had given a description of the 1st appellant in her com-plaint to the Police that statement could very well have beenproduced as the first information in the case. Magilin admittedthat she could not remember if in her statment she had mentionedthat she had pointed out the 1st appellant and said that she wasgiving a description of the 1st appellant for the first time in Court.But at the same time she said that she had given his descriptionto the Police though not in detail. P.C. Piyadasa says that herecorded Magilin's statement at 2.10 aim. on 26.7.74 when shecame to the Police Station to make a complaint, and Sub-Inspec-tor Serasinghe thereafter left for inquiry to the scene of theincident at 2.40 a.m. Now these are matters of record and both
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police officers undoubtedly were refreshing their memory fromthe Information Book when they were giving evidence from thewitness box. Magilin and Vipulasena on the other hand werespeaking entirely from memory in regard to an incident that hadoccurred about five years prior and naturally would not be in aposition to give an accurate narrative of the details. That suchwitnesses could make mistakes is illustrated by the evidence ofVipulasena himself who gave the age of the little girl Somalatha as16 years at the time of the incident when she was then only about8 years. P.C. Piyadasa's evidence places the matter beyond anydoubt that Magi I in's statement was recorded at the WarakapolaPolice Station at 2.10 a.m. that morning before the Police partyset out for investigation and Magilin says that in that statementshe gave a description of the man who raped her.
Undoubtedly no proper identification parade was held butthat does not render Magilin's evidence of the identification of the1st appellant inadmissible. It only affects the weight to be atta-ched to her evidence and, was entirely a matter <for the jury.Magilin stated that she gave a description of the 1st appellant inher statement though she gave no details in regard to his hair,height and complexion. She said she could remember quite wellhis shape and features and could say definitely that he was theperson who raped her when he was shown to her by the Policeafter his arrest. It must be remembered that this identificationtook place within a very short time of the commission of thecrime. There was no reason for her to have implicated the 1stappellant falsely when he was not even known to her. On theother hand she was frank enough to admit that the other man whocarried her was not among the accused in the dock.
Magilin further stated that the man who raped her was wearinga black and white striped sarong and this is corroborated by Sub-Inspector Serasinghe who said that at the time the 1st appellantwas arrested he was wearing a nylon sarong with black and whitestripes.
The 1st appellant was arrested at the Wariyagoda junctionwhich is about 1/8th of a mile from the scene of the offencecommitted on Magilin. He was loitering at the junction at about3 o'clock in the morning when one would have expected him tohave been asleep at home. His house is about a mile from thejunction. He was standing in front of the row of boutiques about12 fathoms from the room where the 4th accused-appellant andPremawathie were later found by the Police. On seeing the PoliceJeep he had taken to his heels and was arrested after a chase.
There is also the evidence of the doctor that the 1st appe-llant had scrape or finger nail marks on his penis which are
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consistent with Magilin's evidence that she put up a desperatestruggle against her assailant. Magilin has not specifically mentio-ned that she scratched the 1st appellant on his penis, but herevidence is that at the time the 1st appellant was inserting hispenis into her vagina she kicked him and also hit him with herhands. It can hardly be expected of a victim in such a terrifyingsituation to remember every detailed act of resistance she put up.She ft/ould no doubt instinctively have used her hands to preventthe insertion of the appellant's penis into her vagina. The 1stappellant has not explained in his dock statement how he sustain-ed the injuries on his sexual organs.
As regards the 4th accused-appellant he was found with thegirl Premawathie inside a boutique room in the Wariyagodajunction at about 3 o'clock in the morning by Sub-InspectorSerasinghe. He was lying on a sheet on the ground withPremawathie who was naked. On the Police entering the roomthe 4th accused-appellant ran. towards the rear door but wasarrested. According to Premawathie the 4th accused-appellant wasone of the persons who carried her from under the Borlax tree tothe room and was the person who first had forcible sexual inter-course with her on the camp bed. She identified him by the factthat he was wearing a pair of long trousers at the time, and laterwhen the Police entered the room a pair of long trousers wasfound hanging on the wall. She has also identified him by hisfeatures.
It was submitted that the room where they were found wassmall and dark with no windows to it. There was not even a lampburning inside. Sub-Inspecter Serasinghe too says that there wasno light in the room when he entered it and he had to flash historch light to examine the room. But this incident would havetaken a considerable period of time and Premawathie would havebeen close enough to the appellant to identify him.
The 4th accused-appellant had stains like dried blood on hispenis and pubic hair which are suggestive of recent sexual inter-course, and the injuries on his penis, according to the doctorare consistent with his having had sexual intercourse with awoman within 24 hours of his examination.
The evidence in regard to the identity of the 3rd accusedappellant is entirely circumstantial. He was not known to the girlPremawathie nor had she given a previous description of him.One of the items of evidence that connects him with the offenceon Premawathie is that he bore a cut injury on his nose. Pre-mawathie's evidence is that she stabbed the man who was rapingher on the nose with a knife which had fallen from his hands.Although it was dark at the time she was able to see where theblow alighted.
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Karunaratne the Dispenser of idea! Dispensary and Mithra-nanda a Technician in Sarasavi Cinema, which adjoins the dis-pensary say that one night at about 12.30 the 3rd accused-appellant came and knocked at the dispensary door and wanteda bleeding injury on his nose attended to. In fact, the appellanthimself admitted in his dock statement that he went to the IdealDispensary one night to get an injury on his nose attended to.Although neither of these two witnesses could give the precisedate of the 3rd accused-appellant's visit to the dispensary, that isfurnished by Dr. Herath to whose dispensary also the appellanthad gone when he could not get treatment at the Ideal Dispensary.Dr Herath gives the date of the appellant's visit as the 26th of"July 1974 which is the day of the incident. The doctor also statedthat a Carnival was on during that period. The Ideal Dispensaryis situated about a 'A mile from the place of the incident and theappellant's visit to the dispensary has taken place a short timeafter the infliction of the stab injury by Premawathie on herassailant's nose. According to Dr. Herath the injury on the nosewas blood stained and could have been sustained within half anhour of his examination.
The 3rd accused-appellant has given three different versionsas to how he came by that injury on his nose to the three prose-cution witnesses who saw him that night. His story of a fall onthe railway line was ruled out by Dr. Herath as improbable in theabsence of any contusions around it and the appellant was compel-led to admit that it was an incised injury when he alleged that itwas inflicted with a sword by an enemy of his. The incised natureof the injury, which the appellant attempted to conceal, is consis-tent with Premawathie's evidence of a stab with a knife. Dr.Herath was shown a knife P9 and expressed the categoricalopinion that the Injury on the appellant's nose could have beencaused by a hard blow with it. At the trial the doctor identifiedthe tell-tale scar on the appellant's nose.
It was suggested that Dr. Herath was not competent to dis-tinguish between an abrasion and an incised injury and that he hadonly looked at the injury at a distance of about 2 feet. But thedoctor's evidence is that he examined the appellant's injury undera fluorescent light and found the injury to be an incised one.He is a fully qualified Ayurvedic Doctor. He had followed a fiveyear course at the College of Indigenous Medicine and had doneone years' post graduate work in hospital. He has obtained a
A. M. S. Diploma in Medicine and Surgery in Ayurvedha andhad been in private practice for four years from 1971. It wassuggested to him that striking the nose on a blunt object like theedge of a table could have caused a split injury that could havesimulated an incised injury. While admitting that it could be so the
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doctor said that in the present instance the injury on the 3rdaccused-appellant cound not have been caused in that fashionas there was no contusion around the injury as one would haveexpected if his nose had come in contact with the edge of a table.The doctor was satisfied that it was an incised injury and theappellant himself has tacitly admitted it to be so when he allegedit to be a sword injury.
The 3rd accused-appellant was arrested on 2.8.74 about 7days after the alleged incident. P. C. Piyadasa said that he lay inambush near a bridge at the Wariyagoda junction and signalled acar in which the 3rd appellant was travelling to halt. The carproceeded without stopping and he gave chase in his vehicle.When the 3rd accused appellant's car had to slow down onaccount of a lorry obstructing it the Police Constable had gotdown from his car and arrested him. The 3rd accused-appellantwas seated in the front seat by the driver, and had attempted torun away. At the time of his arrest he had a piece of stickingplaster on his nose.
The knife P9 was recovered by Sub-Inspector Serasingheburied under a stone by the road side at Hettigahawatte on astatement made by the 3rd accused-appellant to the effect that"he can show the knife." It is submitted by Counsel for theAppellants that the 3rd accused-appellant's statement leading tothe discovery of the knife was irrelevant since the knife had notbeen shown to Premawathie and been identified as the one withwhich she inflicted the injury. But the knife was shown toDr. Herath and he has expressed the opinion that the injury onthe nose of the 3rd accused-appellant could have been causedby a hard blow with it. In the circumstances the statement madeby the 3rd accused-appellant under section 27 of the EvidenceOrdinance is relevant.
It is true that the knife with which Premawathie stabbedthe 3rd accused-appellant was snatched from her hand by threeother men who were under a Bolax tree and there is no evidencethat the knife got back into the hands of the 3rd accused-appe-llant. But all that the prosecution sought to establish was that the3rd accused-appellant knew where the knife was and nothingmore.
One of the charges framed against the 3rd accused-appellantis for the attempted rape of Premawathie, but Premawathie'sevidence is that she was raped. It is submitted that the indictmenthas been drafted on the basis of the statement made by Premawa-thie to the Police and the suggestion was made that the evidenceshe gave in Court was different from the statement she made tothe Police. Premawathie's statement to the Police was available to
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the defence and if there were any discrepancies in it they wouldcertainly have been elicited by the defence. The defect in theindictment is evidently due to the carelessness of the State Coun-sel who drafted it.
A further suggestion was made that the 3rd accused-appe-llant who is charged with the attempted rape of Premawathiecould be one of the two persons who had attempted to put heron the ground when she got up after she had been first raped.The other person, it was submitted, was the 2nd accused whowas charged with the attempted rape of Premawathie, and wasacquitted. Learned Counsel for the Appellants submitted thatthe attempt to put Premawathie on the ground amounted onlyto preparation and did not constitute the offence of attemptedrape. Be that as it may, there is no doubt that the 3rd accused-appellant is the person who put Premawathie on the ground andraped her as that is the man she stabbed on the nose.
Learned Counsel next submitted that the 3rd accused-appe-llant was prejudiced in having to face a charge of attempted rapewhen the evidence against him was one of rape. It was submittedthat in rape intention is not in issue whereas in a charge of attemp-ted rape intention is a necessary ingredient which the appellanthas been called upon to meet. The intention there, it must benoted is the intention to commit the particular offence of rape.
I do not see how a person can complain of prejudice when he ischarged with a less serious offence than is made out on theevidence. An attempt is a stage in the commission of an offencewhich commences with intention and preparation and culminatesin the completed offence. The maximum period of imprisonmentfor the offence of rape is 20 years whereas that for attempted rapeis only half .that term. Attempted rape therefore is in essence alesser offence than rape and the 3rd accused-appellant far frombeing prejudiced stands to benefit by being indicted on a lessercharge than that established on the evidence.
There are admittedly some discrepancies in the prosecutioncase. Magilin for instance said that when the 1st accused-appellantwas about to rape her for the second time, Premawathie came tothe spot and she appealed to her for assistance. But Premawathiesaid that she did not see Magilin at the time. Next Sub-InspectorSerasinghe says that he saw three persons running away from arow of boutiques at the Wariyagoda junction and arrested the 1staccused-appellant after a chase. Magilin says that the 1st accused-appellant was seen running from near the bridge and was arrestedthere. The bridge is about 200 yards from the junction. WitnessVipulasena on the other hand says that the 1st accused-appellantwas arrested while he was sleeping inside a boutique room in
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the junction that morning. There is also a contradiction in theprosecution evidence in regard to Premawathie's mother Pini'svisit to the boutique room early that morning. Witness Vipula-sena said that on the instructions of Sub-Inspector Serasinghe hewent in the Police Jeep and brought Premawathie's mother to theroom where Premawathie was found. P. C. Piyadasa on the otherhand denied that they went to Pini's house and brought her. Thesecontradictions have been referred to by the learned trial Judge inhis summing-up and the jury have evidently not considered themvery material.
According to the eivdence of each of the three girls there wereat least five persons who abducted Magilin and Premawathie andthey constitute an unlawful assembly. The learned trial judge hasexplained adequately to the jury the nature of the various offenceswith which the appellants have been charged and the legal princi-ples involved therein. We have been unable to find any misdirec-tions by the learned trial Judge in the summing-up nor have anybeen pointed out to us by learned Counsel for the Appellants. Thecase has been properly presented to the jury. We are of opiniorfthat there is ample evidence on which the jury were entitled tofind the three appellants guilty of the charges brought againstthem. The appeals are accordingly dismissed and the convictionsand sentences imposed on the accused-appellants are affirmed.
COLIN-THOME, J.
I agree.
TAMBIAH, J. I agree.
ADoeals dismissed.