COURT OF APPEALYAPA, J (P/CA)
C.A. NO. 80/98H.C.-ANURADHAPURA 22/98OCT6b^R 24, 30, 2000
NOVEMBER 8, 2001.
Penal Code S. 357 – Rape – Trial In absentia – Code of CriminalProcedure Code Act, No. 15 of 1979 – S 203, 331, 241 (3), 283 and 364- Judgment read out to accused when he was produced later – Petitionof Appeal out of time? – Revisionary powers.
The accused appellant was indicted on two grounds, one under S. 357 -and on the second count that in the course of the same transaction theaccused appellant abetted a person unknown to the prosecution in thecommission of rape.
The High Court Judge trying the case in absentia found the accused appellantguilty on both counts on 22.7.1998. Later the accused appellant was arrestedand on 2.9.99, the trial Judge read out to the accused appellant the sentenceimposed on him. The accused appellant on 17.9.99 lodged an appeal againsthis conviction and sentence.
In appeal it was contended that there was no evidence of absconding tocommence and proceed with the trial in absentia, and that the trial Judgefailed to act under S. 241 (3) of the Criminal Procedure Code and thatthere was no proper judgment in terms of S. 283.
The State urged that the petition of appeal was out of time and facts andcircumstances would not warrant the accused to invite court to exerciseits revisionary jurisdiction.
The journal entries indicate that the accused – appellant did not giveany reasons for his absence from court and it was only then that thetrial Judge had proceeded to enforce the sentence imposed on him on22.7.98 to be operative from 2.9.99.
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In terms of S. 241 (3) the accused person if he appears before Courtand satisfies court that his absence at the trial was bona fide, the courtshall set aside the conviction/sentence/order and the trial then wouldbe fixed de – novo.
The essence of a judgment consist in the reason for conviction ofacquittal of an accused peoson. The judgment in this case is a wellreasoned out judgment.
The period of time within which an appeal should be preferred mustbe calculated from the date on which the reasons are given''Theconviction/sentence was given on 22.7.98. The Petition of Appeal waslodged on 17.9.1999. The appeal is therefore out of time.
An application in Revision should not be entertained save in exceptionalcircumstances. When considering this issue court must necessarilyhave regard to the contumacious conduct of the accused in jumpingbail and thereafter his conduct in a manner to circumvent and subvertthe process of the law and judicial institutions. In addition, the parlyshould come before Court without unreasonable delay.
Appeal from the Judgment of the High Court of Anuradhapura.
Cases referred to :
Thilakaratne v. Attorney General – 1989 2 SLR 191.
Thiagarajah v. Annaikoddai Police – 50 NLR 109.
Haramanis Appuhamy v. Inspector of Police, Bandaragama 66 NLR526.
Solicitor General v. Nadaraja Muturajah – 79 NLR 63.
Attorney General v. POdi Singho – 51 NLR 385.
Camillus Ignatious v. OIC of Uhana Police Station (Rev) CA 907/89 M.CAmpara 2587.
Sudarman de Silva and Another v. Attorney General 1986 1 SLR 11
Opatha Mudiyanselage Nimal Perera v. Attorney General CA (Rev) 532/97-Kandy HC 1239/92, CAM 21.10.98.
Dr. Ranjith Fternando with Anoja Jayaratne and Sandamali Munasinghe
for the Accused – Appellant.
Kumudini Wickramasinghe Sailor State Counsel, for the Attorney – General.
Cur. adv. vult.
_ ., The State
January 10, 2001.
KULATILAKA, J.In this prosecution before the High Court of Anuradhapurathe accused-appellant stood trial on a plea of “not guilty” to twocounts in the indictment. In the first count it was alleged thaton 23.2.95 the accused-appellant along with persons unknownto the prosecution abducted Gunasekerage Lasadawathie inorder to force or induce her to illicit intercourse without herconsent an offence punishable under Section 357 of the PenalCode and the second count alleged that in the course of thesame transaction the accused-appellant abetted a personunknown to the prosecution in the commission of rape on thesaid Lasadawathie.
At the trial the High Court Judge sitting without a jurycommenced and proceeded with the trial in the absence of theaccused-appellant and pronounced his judgment on 22.7.98whereby he found the accused-appellant guilty on both countsand sentenced him to a term of five years rigorous imprisonmentand to a fine of Rs. 2000/- with a default term of six monthsrigorous imprisonment on the first count and to a term of fifteenyears rigorous imprisonment and to pay a sum of Rs. 10,000/-as compensation with a default term of two years rigorousimprisonment on the second count. Both sentences were to runconcurrently. Further he ordered that in the event of accused-appellant failing to pay the fine and compensation imposed onhim the sentences on both counts to run consecutively.Thereafter the learned trial Judge had issued an open warrantagainst the accused-appellant.
Consequent upon the issuance of the warrant the army hadarrested the accused-appellant and had handed him to thecustody of the Medawatchiya police who in turn had producedhim before the High Court on 2.9.99.
The learned High Court Judge had read out to the (accused-appellant) the sentences imposed on him by the learned trial
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Judge. On 17.9.99 the accused-appellant had filed a petitionof appeal against his conviction and sentence.
At the hearing of the appeal the learned counsel whoappeared for the accused-appellant urged the following grounds:
that there was no evidence of absconding for the trial Judgeto make his order dated 20.05.98 to commence andproceed with the trial in absentia in terms of Sectionc 241(1) of the Code of Criminal Procedure Act No. 15 pf 1979and as such there was no proper trial.
that the trial Judge has failed to act in terms of Section 241
(a) of the said Act.
that there was no proper judgment in terms of Section 283of the Code of Criminal Procedure Act.
On the other hand the learned Senior State Counsel urgedthe following grounds:
that the petition of appeal is out of time.
that the facts and circumstances of this case would notwarrant the accused to invite the Court of Appeal to exerciseits revisionaiy jurisdiction in the event this Court were tohold that the appeal is out of time.
Before giving our mind to the above matters it is pertinentto refer briefly to the facts of this case. The prosecution hasadduced the evidence of the prosecutrix Lasadawathie, her sisterChandrawathie, medical expert Dr. Upul Ajit Kumara Tennekoonand the investigations carried out by the police.
The prosecutrix Lasadawathie testified that in the year 1995she used to sleep in the house of her uncle Buddadasa becauseof threats to harm her coming from the accused-appellantGamini Rajapakse who was her nephew. The accused-appellantwas married to Lasadawathie’s sister’s (Chandrawathie’s)
Rajapakse a■ The State
daughter. He had threatened to shoot her or rape her. When shewent to her uncle’s place to sleep her mother used to chaperonher. On 23.2.95 she left home alone around 7 p.m. for hermother was sick. Whilst she was on her way to her uncle’s placethe accused-appellant had come with three others on twobicycles, held her and carried her by force to a lonely place.Thereafter two persons had raped her, one after the other whilston Igoth occasions the accused-appellant Gamini Rajapaksewas bolding her. They left her there naked and unconscious.When sfie gained consciousness it was dawn and she was feelinglifeless. The abductors and rapists had inserted two sticks intoher private parts. These sticks were marked PI and P2. Theabductors had gagged her mouth with her own brassiere. Itwas a dastardly act, a gruesome crime. Early morningChandrawathie had gone in search of her sister Lasadawathieaccompanied by the police. She found her sister Lasadawathielying naked at a lonely spot. Her mouth was gagged with abrassiere. She was very weak and on being questioned byChandrawathie she had said “it was Gamini Rajapakse who ismarried to your daughter who is responsible.”
The medical evidence was adduced by the medical expertDr. U.A.K. Tennakoon who had examined the prosecutrix on24.2.95 at the Anuradhapura hospital. She had beentransferred to Anuradhapura from Medawachiya on the sameday. He had observed two injuries on the prosecutrix, namely,
swollen buccal mucosa of upper pallet.
1/2” long linear abrasion on the buttocks area, further heobserved “two plant sticks (1/4” in diameter, 4 1/2” long, ando.l” in diameter, 7 1/2” long) found in the vagina in situ.” Thepatient had given a history of rape. His report has beenproduced marked P6. Further in her short histoiy to the Doctorshe had implicated the accused-appellant. Thus the testimonyof the prosecutrix has been amply corroborated by the medicalevidence to the effect that she had been ravished.
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The Inspector of Police Keerthi Bandara testified to theinvestigations carried out by him at the crime scene. He hadpersonally accompanied the complainant Chandrawathie insearch of the prosecutrix and found her lying naked at a lonelyspot on Maligawa Road 3 miles away from Lindawewa junction.He found her mouth gagged with a brassiere. This brassierehad been produced marked PI. After despatching theprosecutrix to the hospital he went in search of the accused-appellant to his house. He found that the accused-appellanthad run away, but he was able to arrest him at Medirigiriya on28.2.95.
We now consider the arguments advanced by the learnedcounsel for the accused-appellant in support of his contentions.
According to Section 241 (3) of the Code of CriminalProcedure Act, No. 15 of 1979 after the conclusion of the trial ofan accused person in his absence if he appears before Courtand satisfies the Court that his absence at the trial was bonafide the Court shall set aside the conviction and sentence andorder that the accused be tried de novo.
The learned counsel at the commencement of the argumentmade submissions to the effect that when the accused-appellantwas produced before the High Court on 2.9.99 by the police thelearned High Court Judge had merely read over to the accused-appellant the sentence imposed on him by the trial Judge inhis judgment dated 22.7.98 albeit, the learned Judge failed tocomply with the provisions of Section 241 (3) of the Act.However, when he was confronted with the journal entry of 2.9.99he chose to abandon that contention. The journal entry indicatesthat the accused-appellant did not give any reasons for hisabsence from Court and it was only then that the learned HighCourt Judge had proceeded to enforce the sentence imposedon him by the learned trial Judge on 22.7.98 to be operativefrom 2.9.99. Nevertheless the learned counsel persisted withhis contention that the High Court did not have sufficientevidence of absconding for him to justify the order he made on
Rajapakse u- ^*e State
20.5.1998 in terms of Section 241 (1) of the Act to commenceand proceed to trial in the absence of the accused. The learnedcounsel seems to have conveniently forgotten the fact that whenthe accused-appellant was arrested by the army and producedbefore Court by the police after a lapse of 13 months from thedate of the pronouncement of the judgment and sentence bythe trial Judge he did not give any reasons for his absence atthe trial. This factor by itself would demolish the contentionthatlthere was no evidence of absconding before Cotfrt whenthe Judge made an order in terms of Section 241 (1) of theCode of Criminal Procedure Act for a trial in absentia.
According to the proceedings in the Magistrate’s Court theaccused-appellant had been enlarged on bail on 13.3.96 aftersigning a bail bond and a recognizance whereby he boundhimself to continue to appear in Court. In that bail bond hehad given his name and address. The journal entry of 9.3.98indicates that the Court had noticed the accused-appellant toappear on 25.3.98 to serve his indictment. According to thejournal entry of 25.3.98 when the case was called on that dateto serve the indictment the accused was absent. It was reportedto Court that the accused had been missing for a period of abouttwo years. Thus the accused-appellant had flouted and violatedthe conditions and assurances in the bail bond solemnly signedby him.
The surety had been present. He had been released onpersonal bail with the assurance given by him that he wouldproduce the accused-appellant in Court. It is on record that on18.5.98 when the case was called Attomey-at-Law Hatangalahad made submissions on behalf of the surety to the effect thatthe accused-appellant whilst he was on bail in connection withthe instant case he had robbed a gun and cartridges from aGrama Arakshaka and thereafter had proceeded to murder hisown wife. Subsequently he was involved in a robbery as well.Thereafter he had disappeared from the village. Apart from theseconcrete facts which are on record, the learned High Court Judgehad before him the evidence of the Grama Sevaka of the area
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where the accused had been living. He had testified to the effectthat he had never seen the accused-appellant in his area. Thefather of the accused Suddahamy testified that he did not seehis son since April 1996 and he did not know his whereabouts.Thus we are of the view that there was concrete and cogentevidence before the learned trial Judge to justify the order hemade on 20.5.1998 to commence the trial and proceed in theabsence of the accused-appellant. In this regard vide thejudgment of Wijeyaratne, J in Thilakaratne vs. The Attofyiey-GeneraV11.a
Another point urged by the learned counsel for the accused-appellant was that the judgment of the learned trial Judge dated22.7.98 was not a proper judgment in terms of Section 283 ofthe Code of Criminal Procedure Act. Our Courts have stressednow and then that the essence of a judgment consist in thereasons for conviction or acquittal of an accused person. VideThiagarafah vs. Annatkoddai Policel2>, Haramants Appuhamyus. Inspector of Police Bandaragama131. The learned trial Judgehas given his mind to the vivid description of events testified toby the prosecutrix, corroborative evidence adduced by anindependent source namely Chandrawathie relating to theutterances made by the prosecutrix to Chandrawathie soon afterChandrawathie and the police found her, to the effect that itwas Chandrawathie’s son-in-law Gamini Rajapakse who wasresponsible for the gruesome act to which she was subjected toand the fact that the prosecutrix was lying naked with a gaggedmouth. The learned trial Judge has considered the relevance ofmedical evidence as well before he arrived at the conclusionthat the accused-appellant was guilty on both counts in theindictment. The judgment in this case is a well reasoned outjudgment. Hence we hold that the submissions made in thisregard lacks substance and merit.
The learned Senior State Counsel took up a preliminaryobjection that the appeal was out of time. She referred us toSection 203 of the Code of Criminal Procedure Act which readas follows:
Rajapakse v. The State
“When the cases for the prosecution and defence areconcluded the Judge shall forthwith or within ten daysof the conclusion of the trial record a verdict of acquittalor conviction giving his reasons therefor and if the verdictis one of conviction pass sentence on the accusedaccording to law."
She submitted that in all cases irrespective of whether theaccused was present or tried in absentia the trial Judge hasto comply with Section 203 of the Code of Criminal ProcedureAct and in terms of Section 331 of the Code the petition ofappeal has to be lodged with the Registrar of the High Courtwithin 14 days from the date when the conviction, sentence ororder sought to be appealed against was pronounced. Thisposition has been looked into by Sri Skanda Rajah, J inHaramanis Appuhamy vs. Inspector of Police Bafcdaragama(Supra) and Pathirana, J in Solicitor-General vs. NadarajahMuthurajah(4> where it was held that the period of time withinwhich an appeal should be preferred must be calculated fromthe date on which the reasons for the decision are given.
In the instant case the reasons for the convictrfm and thesentence were given on 22.7.98. The petition ofifcippeal hadbeen lodged in the High Court on 17.9.1999. V <srefore thesubmission made by the learned Senior State Counsel to theeffect that the appeal is out of time should succeed.
The learned counsel for the accused-appellant alsosubmitted that if this Court were to hold that the petition ofappeal is out time it would not preclude him from invitingthis Court to exercise the revisionaiy powers in terms ofSection 364 of the Code of Criminal Procedure Act. We agreethat the powers of revision of the Court of Appeal are wideenough to embrace a case where an appeal lay was nottaken. However an application in revision should not beentertained save in exceptional circumstances. Vide thejudgment of Dias, SPJ in Attorney-General vs. Podisinghoe151.When considering this issue this Court must necessarily have
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regard to the contumacious conduct of the accused in jumpingbail and thereafter conducted himself in such a manner tocircumvent and subvert the process of the law and judicialinstitutions. In addition if this Court were to act in revision theparty must come before Court without unreasonable delay. Inthe instant case there is a delay of 13 months. In this regardvide Justice Ismail’s judgment in Camlllus Ignatious vs. OIC ofUhana Police Station161 (Application in revision) where HisLordship was of the view that a mere delay of 4 months in filingrevision application was fatal to the prosecution of the revisionapplication before the Court of Appeal. Accused’s contumaciousconduct and unreasonable delay would necessarily precludehim from inviting this Court to act in revision in terms of Section364 of the Code of Criminal Procedure Act.
In Sudarman de Silva & Another vs. Attorney General(7)at 14 and 15 Sharvananda, J observed that the contumaciousconduct on the part of an applicant is a relevant considerationin an application in revision. In this regard vide the judgment ofF.N.D. Jayasuriya, J in Opatha Mudiyanselage Nimal Pereravs. Attorney-General81. In that case too the trial against theaccused w^j held in absentia and he had filed an applicationin revision *hj)/4 years since the pronouncement of the judgmentand the senuhce. His Lordship remarked:
“These matters must be considered in limine before theCourt decides to hear the accused-petitioner on the meritsof his application. Before he could pass the gateway to reliefhis aforesaid contumacious conduct and his unreasonableand undue delay in filing the application must be consideredand determination made upon those matters before he isheard on the merits of the application.”
In these circumstances we are not disposed to exercise ourrevisionary powers of this Court and interfere with the judgmentof the learned High Court Judge made on 22.7.98. Besides, onthe facts of this case there is no merit.
Rajapakse v. The State
We observe that the learned Jsentences to run consecutively, in the event the accused-appellant failed to comply with die terms in respect of the fineand compensation imposed on him on counts one and tworespectively. We order that this portion of his sentence to bestruck off since there is no legal basis to make such an order.Subject to this variation, we proceed to dismiss the appeal andalso the application for revision made to this Court in terms ofSection 364 of the Code of Criminal Procedure Act.
HECTOR YAPA, J. (P/CA) – I agree.Appeal dismissed.
Application in revision refused.