003-SLLR-SLLR-2010-V-1-SAVINDA-vs.-REPUBLIC-OF-SRI-LANKA.pdf
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SAVINDA VS. REPUBLIC OF SRI LANKACOURT OF APPEALSISIRA DE ABREW. J.
LECAMVASAM. J.
CA 212/2007HC COLOMBO 2848/2006OCTOBER 28, 2009NOVEMBER 6, 9, 20, 2009
Penal Code – Section 364(4) – Rape – Ingredients – Reasonable doubt -Charge should fail? Credible witness-Test ofProbability-Compensation -default sentence in excess of 2 years – validity?
The accused-appellant was convicted for raping a woman inside a busand was sentenced to 20 years R. I. and to pay a fine of Rs. 25,000/-cartying a default sentence of 2 years R. I., in addition, he was orderedto pay a sum of Rs. 500,000/- to the victim as compensation carryingdefault sentence of 5 years R. I.
The respondents’ position was that he had sexual intercourse withconsent.
Held
To establish a charge of rape, the prosecution must establish thefollowing ingredients.
The appellant committed sexual intercourse on the woman.
The said intercourse was performed without her consent.
If there is reasonable doubt in one of the ingredients the chargeshould fail.
The story of the prosecutrix that sexual intercourse was performedwithout her consent does not satisfy the test of probability. Theprosecutrix was not a credible witness.
Per Sisira de Abrew. J.
CA
Savinda vs. Republic of Sri Lanka
(Stsira de Abrew, J.)
33
“In my view in a charge of rape if the evidence of the prosecutrixdoes not satisfy the test of probability and or the prosecutrix is nota credible witness, Court should reject her evidence and acquit theaccused”.
Held farther:
The default sentence of 5 years R. I. is illegal since the maximumsentence that could be imposed for non payment of compensationis two years.
Gayan Perera for accused-appellantAyesha Jinasena SSC for Attorney General.
January 21, 2010SISIRA DB ABREW, J.
The accused appellant (the appellant) in this casewas convicted for raping a woman named AmarasingheMudiyanselage Lalini and was sentenced to a term of twentyyears rigorous (RI) and to pay a fine of Rs. 25,000/- carryinga default sentence of two years RI. In addition to the abovesentence he was ordered to pay a sum of Rs. 500,000/- tothe victim as compensation carrying a default sentence offive years RI. This appeal is against the said conviction andthe sentence. At the very inception I would like to state herethat the default sentence of five years RI is illegal since themaximum default sentence that could be imposed for nonpayment of compensation under Section 364(4) of the PenalCode is two years.
Facts of this case may be briefly summarized as follows:Lalani, working in Katunayake, on 24.5.2005 boarded aColombo bound bus at Bodagama, her hometown inThanamalwila police area in order to come to Colombo. After
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the bus was stopped at police check point at Udawalawa, thedriver of the bus, the appellant in this case, requested her tocome and sit on a small seat behind the driver's seat as shecould not continue to stand in the bus. She was, at this time,standing on the foot board. She thereafter got off the bus, gotin from the driver’s door, occupied the said seat and continuedto be on the seat until she came to Colombo. When passengerswere getting off at Pattah, she requested him to open the driver’sdoor but he refused to do so as it would disturb the peoplemoving on the road. She says that the front section of thebus was separated from the rear section of the bus by an ironfence and therefore she could not go to the rear section andcould not get off from the normal passenger door. Howevershe later says that she jumped over this fence. Vide page 89of the brief. The driver at this stage asked her to get off atGunasingherpura which is also in pettah. The driver did notstop the bus at Gunasinghepura but drove to Bastian Mawathain Pettah and stopped the bus. Thereafter the driver jumpedover the fence and went to the rear section of the bus. She toojumped over the fence. The driver then dragged her the rearseat and started fondling her breast. He then got up, put amat on the floor and pushed her to the mat. Whilst she wason the ground, he pulled her pair of jeans, tie short and pantyand raped her.
The appellant in his evidence admitted that he had sexualintercourse with her consent.
Soon after the incident she made a complaint to thepolice. This is in her favour. The appellant in his evidencesays that after the sexual act she kept on asking whether heis married. According to the accused she later addressed himin the following language: “Did you love me to do this? Peoplein the bus trade are like this. "She got off the bus saying
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Savinda vs. Republic of Sri Lanka
(Sisira de Abrew, J.)
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that she would find whether he is married. The appellant furthersays that he did not give his telephone number to heralthough she asked for it. From this evidence it appears thather hopes of having a hold- on him perhaps hopes of gettingmarried to him have shattered. According to the appellantboth of them were having a friendly chat from Udawalawato Colombo. It appears from the above evidence that friendlyassociation has turn out to be anger when she got off the bus.This is evident from the language used by her soon beforeshe got off the bus. These were the reasons for her to make aprompt complaint to the police.
The appellant had a laceration on his lower lip and abit mark on his shoulder. This evidence was in favour of theprosecutrix. The appellant says in this evidence that whilst hewas performing sexual act with her consent she kept on chew-ing his shoulder and the lip. Thus the fact that the appellanthad injuries is something that can be understood. Thisevidence of the appellant cannot be sin afterthought since theprosecution did not mark any contradiction or omission inhis evidence.
The prosecutrix had four contusions and one abrasion onthe chest. The appellant says that he fondled her breast withher consent. However she says he did it without her consent.Doctor says that if the sexual act was performed after removingher clothes, injuries could not have been restricted only tothese injuries. The prosecutrix says that she was dragged fromthe iron fence of the bus to the rear of the bus, pushed her tothe rear seat thereafter pushed her to the floor of the bus andremoved her pair of jeans,, tie short, and the panty while shewas on the floor. All these things were done against her will.She further says that sexual intercourse was performed onthe space between the two sets of seats where the passengers
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stand. If this was the situation how did she receive injuriesonly on her chest? Doctor at page 178 of the brief says thatinjuries found on the prosecutrix are compatible with theshort history given by her. But in her short history given tothe doctor she had not said all the details that I stated earlier.She had not even said that she was pushed to the floor ofthe bus. She had told the doctor that the sexual intercoursewas committed whilst she was on a seat. Vide page 159 of thebrief. But at the end of cross-examination doctor says that ifsexual intercourse was performed after removing her clothesthere would have been more injuries than the injuries foundon her. The above observation raises a serious doubt aboutthe truthfulness of the story of the prosecutrix that sexualintercourse was performed without her consent.
According to witness Premasiri to whom the prosecutrixcomplained that she was subjected to a sexual harassment,the bus was parked on Bastian Mawatha facing Fort railwaystation. She met Premsiri soon after she got down from thebus. At this time he was walking from the direction of Fortrailway station towards Court. The bus was on his left handside. This shows that the doors of the bus were facing theroad. The bus was parked 30 feet away from the petrol stationat Bastian Mawatha. Although the prosecution relying on IPOvitigama’s evidence, tried to contend that this place was alonely place, this was negated by the evidence of PC 12717Kumara who said that this place was a crowded place. PCKumara was on duty from 2.00 p.m. onwards on the day ofthe incident (24.5.2005). He said that this place was usuallya crowded place and did not notice any change on this day.IP Ovitigama said in evidence that police post at BastianMawatha was located 20 meters away from the place wherethe bus had been parked at the time of the incident. It istherefore seen that at the time of the sexual intercourse the
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Savinda vs. Republic of Sri Lanka
(Sisira de Abrew, J.)
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bus was parked at a crowded place at Bastian Mawatha and
that this place was 20 meters away from the police post and
30 feet from the petrol station. The doors of the bus were
facing the road. Thus the question that has to be asked:
would the appellant select this type of the place to commit
sexual intercourse on a woman if it was against her will. Even
after an attempt to commit a sexual act thinking that she
was consenting, would he continue to do it at this place if he
felt that she was not consenting. This question will have to
be answered in the negative. I therefore hold that the story
of the prosecutrix that sexual intercourse was performed
without her consent does not satisfy the test of probability.
For these reasons I hold that there is a very serious doubt in
the truth of the prosecutrix’s story that sexual intercourse
was performed against her will. The appellant must be
*
acquitted on this ground alone.
To establish a charge of rape, the prosecution mustestablish the following ingredients. (1). The appellantcommitted sexual intercourse on the woman. (2) The saidintercourse was performed without her consent. If thereis a reasonable doubt in one of the ingredients the chargeshould fail. The above observations would show that there isreasonable doubt in the 2nd ingredient. Therefore the Courthas to conclude that the charge of rape has not been provedbeyond reasonable doubt. The appellant is, then, entitled to beacquitted.
Learned SSC pointed out that he was arrested whilsthiding on the ceiling of the appellant’s house. She tried tocontend that he went into hiding because of the guilty mind.But when considering this contention one must one forgetthe fact that his wife was present at the time of the arrest. No
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man will admit in the presence of his wife that he committedsexual intercourse on a woman with or without consent.Therefore the fact he was hiding in the ceiling is understand-able.
When the appellant stopped the bus at Pettah thepassengers started getting off. At this time the prosecutrix,according to her, requested the appellant to open the driver’sdoor for her to get down. The appellant had refused to do so asit would disturb the people moving on the road. The fact thatshe did not make an attempt to get off from the driver’s doorcan be understood as he was a person who had helped herto give a seat. If her intention was, as stated by her, to go toKatunayake why didn’t she get off from the passenger door?Her explanation to this was that she could not jump over theiron fence which separated the driver’s section and the rearsection. Vide page 52 of the brief. But this evidence is beliedby her evidence at page 56 and 89 of the brief where she saysthat she jumped over the iron fence and came to the rearsection of the bus. If her intention was to go to Katunayakeand she was not permitted to get off the bus through thedriver’s door, why couldn’t she jump over the iron fence whenthe passengers were getting off at Pettah? She could haveeasily done this since, according to her evidence, her seatwas behind the driver’s seat. Vide her evidence at page 48of the brief. Further she could have easily got the help of thepassengers to jump over the fence. Even the appellant couldnot have done anything to block this attempt since he wason the driver’s seat at this time. She herself admits that laterat Bastian Mawatha she jumped over the iron fence. Was itnatural for this woman to remain in the bus with two men(the driver and the conductor) when she had the opportunityof getting off the bus? I think not. This shows that she was
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Savinda vs. Republic of Sri Lanka
(Sisira de Abrew, J.)
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willing to enjoy the company of the appellant. This raises areasonable doubt in the truth of her story that she was not awilling partner to the sexual act. According to the prosecutrix,when the passengers were getting off at Pettah, the appellantrequested her to get off at Gunasinghepura. But when thebus went to Gunasinghepura it did not stop there, instead theappellant turned the bus at Gunasinhepura and come toBastian Mawatha. By this time she should know that some-thing serious was going to happen to her. Then why didn’t shejump over the iron fence which she did later? I ask the questionwhy she didn’t jump over the iron fence at least during thejourney from Gunasinghepura to Bastian Mawatha. Sheclaims that: she could not jump over the iron fence becausethe driver was there (page 56) But this cannot be acceptedsince she admitted that her seat was behind the driver’s seat(page 48) During the journey from Gunasinghepura to BastianMawatha the driver (the appellant) was driving and if she wasseated behind the driver how could the driver do anything toher? This observation would raise a serious doubt about thetruth of her story that she was not a willing partner to thesexual intercourse. The above observation would show thatthe prosecutrix is not a credible witness. As I pointed outearlier if there is a reasonable doubt on the 2nd ingredient ofthe offence of rape, the appellant should be acquitted.
According to the prosecutrix when the appellant wasinserting his male organ to her vagina she shouted. Thenhe squeezed her neck and addressed her in the followinglanguage. “Don’t shout. People will hear. If that happensI will have to open the door.” This was the evidence of theprosecutrix. Learned Counsel contended that this was arequest by the appellant to the prosecutrix and if it wasagainst her will this kind of request would not have beenmade by him. This evidence too creates a reasonable doubt in
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the truth of the prosecutrix’s evidence that the sexual inter-course was committed without her consent.
I have earlier pointed out that the story of the prosecutrixthat sexual intercourse was performed without her consentdoes not satisfy the test of probability. Further I have pointedout that the prosecutrix was not a credible witness. In myview, in a charge of rape if the evidence of the prosecutrixdoes not satisfy the test of probability and/or the prosecutrixis not a credible witness, court should reject her evidenceand acquit the accused. For the above reasons, I hold thatthe prosecution has not proved its charge beyond reasonabledoubt. I therefore set aside the conviction and the sentenceand acquit the appellant of the charge with which he wasconvicted.
LECAMWASAM, J. -1 agree.
Appeal allowed.