Tfte Rtpublic ot Sri Lanka
Present: Thamotheram, J., Sirimane, J., and
S. RAJARATNAM, Accused-Appellantand
THE REPUBLIC OF SRI LANKA, Respondent.S. C. 85/75—H C. Jaffna 55/74
Criminal Law—Charge of rape—Evidence of prosecutrix-—Nature ofcorroboration required.
Questions by defence counsel suggesting consent—Identity ofaccused—No evidence given by accused——Direction by trial Judgethat evidence of identity of accused may be provided by suchsuggestion.
Held ; (1) That the corroboration required where the charge isone of rape is some independent testimony which affects the accusedby connecting or tending to connect him with the crime. A state-ment made by the prosecutrix to her grandmother, after the eventcannot constitute tne kind of corroboration required.
(2) That a suggestion made by defence Counsel in cross-exami-nation could not be considered as evidence in the case where theaccused had not given evidence and taken up such position. To directthe jury to treat it as such would be a very serious misdirection..
Cases referred to :
King v. Atukorale, 50 N. L. R. 256.
Premasiri v. The Queen, 77 N.L.R. 36.
A-PPEAL against a conviction in the High Court, Jaffna.
T.Joganathan (assigned) for the accused-appellant.
U.Yapa, State Counsel, for the Attorney-General.
Cur. adv. vult.
October 29, 1975. Thamotheram, J.
The accused was convicted in the High Court of Jaffna of com-mitting rape on Thangamany Kandappu and sentenced to 15years rigorous imprisonment. Thangamany gave her age as 20years. She said that she stayed with her grandmother in Ward15 at Delft. On 9.3.73, the date of the alleged offence, her grand-mother went to Ward 14 to uproot palmyrah roots, having askedThangamany to bring her noon day meal to where she went towork.
Thangamany carried out her instructions and was taking themeal to her grandmother when she met the accused and accord-ing to her he held her by the hand, caught her by the neck anddragged her towards the sea shore. She was put down, herblouse was opened, the skirt she was wearing was raised andthen the accused had intercourse with her.
THAMOTHERAM, J.—Rajaratnam v. The Republic of Sri Lanlca
Her grandmother Valliammah supported the evidence ofThangamany. She said, she had to go hungry that day as hergrand-daughter did not turn up till about 5 p.m. Then shecame crying. She found her hair dishevelled and she complainedto her that Sellan Annai’s son had committed an offence on her.She then took her grand-daughter to the police who recordedher statement.
The doctor was asked whether, when he examined the prose-cutrix he noticed any signs of violence. The doctor replied thathe found the following injuries: —
An oblique abrasion 1" long on the back of the middle
of the right forearm.
An oblique abrasion long at the base of the right side
of the neck.
There was pain on the left angle of the lower jaw and
on the left side of the neck.
There was pain of coccyx between the buttocks.1
Pain on lateral side of the right ankle.
The doctor added that the external injuries were suggestive ofstruggle.
The doctor who examined the accused about 4 days after thealleged offence said that he found one injury on the accused, itwas an infected inside wound, obliquely across the left forearm4" long skin deep and 4" above the wrist. It could have beencaused in the course of a struggle. He said a pointed stone couldhave caused this injury and the evidence was that there weremany pointed coral stones in the Island of Delft. Doctor furthersaid that this injury was consistent with having been causedon 9th March.
The police officer who went to the scene said that he obesrvedmarks of strugle on the beach.
Counsel for the appellant made the following points :
That there was gross misdirection on corroboration.
The wrong direction in regard to the medical evidence
in the case caused prejudice to the accused.
That the contradictions have not been properly put to
The case had not been proved beyond reasonable doubt.
While dealing with the medical evidence the learned Judgesaid, “ The doctor was asked by the State Counsel, ‘ taking allthese injuries together, do you say that rape has been commit-
THAMOTiCERAM, J.—Rajarulnam v. The Republic of Sri Lunlca75
ted ’ and his answer was ‘ a tear in the posterior fornix meansthat there has been penetration and there was rape.” In doingso the learned Judge in effect told the jury that in the opinionof the doctor, the offence of rape had been committed. It wasfor the Jury to find out whether the offence of rape had beencommitted. The doctor could only speak to the question of pene-tration and the Jury should have been adequately warned notto be influenced by the doctor’s opinion that rape had been com-mitted. The learned Judge instead of doing this left the opinionof the doctor as something they could take into consideration.
The learned Judge had only this to say on the question ofcorroboration. “ The counsel for the accused also cited the casereported in 50 NLR page 256, King vs. Athukorale where it washeld that where a accused is charged with rape, corroborationof the story of the prosecutrix must come from some indepen-dent quarter and not from the prosecutrix herself. The com-plaint made by the prosecutrix to the police in which sheimplicated the accused cannot be regarded as corroboration ofher evidence. But, in this case, the evidence of the girl is corro-borated by her grandmother who says that she heard about thecomplaint of rape and also the medical evidence. There is alsoanother case which I would like to cite which was decided in1971 by the Court of Criminal Appeal. This was reported in 77NLR page 86. The earlier case was in 1948. This case is Premasirivs. the Queen where the Judges held that in a charge of rapeit is proper for the Jury to convict on the uncorporated evi-dence of the complainant only when such evidence is of such acharacter as to convince the Jury that she is speaking the truth.”
The law in regard to the need of corroboration in rape casesis well settled. “ The corroboration which should be looked forin cases of this kind is some independent testimony whichaffects the accused by connecting or tending to connect him withthe crime, and it is settled law that although the particulars ofa complaint made by a prosecutrix shortly after the allegedoffence may be given against the person ‘ as evidence of theconsistency of her conduct with her evidence given at the trial,’such complaint ‘ cannot be regarded as corroboration in theproper sense in which that word is understood in cases of rapeand it is misdirection to refer to it as such’…. such evidenceis not corroboration because it lacks the essential quality ofcoming from an independent quarter.” 50 N.L.R. 256.
The learned Judge had presented the complaint made by thegirl to the police as something that cannot be regarded as corro-boration and in the same breath proceeded to present her com-plaint to the grandmother as corroboration, when he said “ but
7tiTHAMOTHEltAM, J.- -Hajnralnam >■. Thu Ur-public oj Sri Lanin
in this case the evidence of the girl is corroborated by her grand-mother who says that she heard about the complaint of rapeIn our view, this is a grave misdirection. Further when hereferred to the case reported in 77 N.L.R. stating that theJury could act on uncorroborated evidence of the complainantonly, he seems to suggest that that was the latest position as the50 N.L.R. case was in 1948. The Jury should have been told inclear terms what amounted to corroboration in law. He shouldhave explained why it was necessary to look for corroborationin rape cases. While it was open to them convict on the uncorro-borative evidence of the prosecutrix alone, where such evidencecarried conviction that she was speaking the truth.
There was another very serious misdirection when the Judgetold the Jury, “ He (the defence counsel) said that the identityof the assailant is in question. At this stage, I like to draw yourattention to the last question in cross-examination put bylearned counsel for the accused to the witness, Thangamani : —
Q : I put it to you on behalf of the accused that the accusedhad sexual intercourse with your consent ?
A : I deny the suggestion.
No doubt the accused did not give evidence nor did he call anywitnesses on his behalf, but the defence suggestion is that theact on this girl was committed with her consent. Therefore, itis not necessary to find out whether it was this accused who didit or some other person had committed the act. The defencesays ‘ Yes, this happened, but it was with the consent of thegirl.’ In my view, your task has been made lighter because ofthis question.” Towards the end of the charge there appearsthe following remarks of the defence counsel and the Judge’sreply : —
“ Defence Counsel : There is the suggestion of consent, butthat does not stop the accused from taking any other defence.
Court : Your suggestion is that this intercourse took placewith the consent of the complanant ?
Defence Counsel: I did not address the Gentlemen of theJury on that point. The accused has never taken up the positionthat it was only with consent.
Court: I am perfectly entitled to say that this suggestion wasmade by learned counsel for the defence. If you had said, ‘ Thisaccused never had sexual intercourse with her that is a differentmatter.
Court to Jury : Gentlemen, as I stated earlier, the defence hasnot given evidence. I have also told you that the accused is per-fectly entitled to sit where he is and call the prosecution to
TIIAJIOTHERAM, J.-—RajaratnaM c. The Republic of Sri T.-.-hii
prove its case. That burden never shifts from the prosecutionHowever, you must also consider the fact that fhe last questionput by the defence counsel to the witness Thangamani was “ Iput it to you that the accused had sexual intercourse with yourconsent. ” No other suggestion was put to her. There was nosuggestion that it was not the accused who committed thisoffence. So that the suggestion put by the defence was that thesexual intercourse was done with the consent of the gir7.
Defence Counsel: May I be permitted to say this with respect,this is a criminal case and that question was put as port of theother questions to test the veracity of the witness. In my addresstoday, I never took the defence that the accused had sexualintercourse with the girl with consent.
Court (contd.) : Gentlemen of the Jury, yes, you can also takeinto consideration what counsel has stated in his address, but,the last question put by the learned counsel for the accused was4 this intercourse took place with, consent. ’
Gentlemen, now you can retire and consider your verdict ”The Jury can bring a verdict only on the evidence in the caseand not on any suggestions or questions that may be put by thecounsel. “ Evidence ” means and includes—
all statements which the court permits or requires to
be made before it by witness in relation to mattersof fact under inquiry ; such statements are called oralevidence ;
all documents produced for the inspection of the court ;
such documents are called documentary evidence.The accused had not given evidence. He had not taken up theposition that he committed the act and limited himself only toa defence that the girl had given her consent. The Jury wasinvited by the Judge to take one of the vital ingredients of offenceas proved merely because the defence counsel had put a questionwhen the prosecutrix was given evidence on the basis that t}ieaccused had intercourse with the girl’s consent. Before the chargewas concluded, the counsel for the defence made clear his posi-tion in the matter, but the learned Judge persisted in his viewthat the counsel’s question could be taken as amounting to anadmission by the accused himself.
For these reasons, we quash the conviction and sentence. Wefurther order a re-trial as there is sufficient admissible evidence-on which the Jury properly directed could find the accused guiltyof the offence.
Sirimane, J.—I agree.■1 !
Vythialingam, J.—I agree.
Re-trial ordered.1 ** — A 082496
S. RAJARATNAM , Accused-Appellant and THE REPUBLIC OF SRI LANKA, Respondent