008-SLLR-SLLR-2004-V-3-SRATHCHANDRA-v.-ATTORNEY-GENERAL.pdf
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Sarathchandra v. Attorney-General
fBalapatabendi. J. )
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SARATHCHANDRAv
ATTORNEY-GENERALCOURT OF APPEALFERNANDO, J.NANAYAKKARA, J.BALAPATABENDI, J.
CA 16/2002 (DB).
HC BALAPITIYA NO. 370.JUNE 10TH, 2003.FEBRUARY 19th, 2004.
Penal Code, amended by Act, No. 22 of 1995, sections 363, 363 (e) – 364 (2)Rape – Defence of marriage by habit and repute – Proof – Criminal ProcedureCode section, 164 (4) -165, 166, and 174 – Framing of charges? -Requirements of the relevant question to be communicated via the charge? -Is it imperative?
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The accused-appellant was indicted on a charge ot rape and after trial was
convicted by the High Court.
In appeal it was contended that the trial judge failed to consider the evidence
regarding the marriage between the parties by habit and repute and that at the
time of the incident the prosecutrix was the wife of the accused.
Held:
Balapatabendi, J. and Fernando, J.:
There is no evidence or even a suggestion that there was anyceremony, rite or customs observed whatsoever at any point of theirliving together. In addition a presumption of marriage by habit andrepute cannot be drawn in the absence of evidence that the society orthe relations accepted or recognized them as husband and wife.
The only inference that could be drawn was that the family membersintended to have them married on a future date. ■
Nanayakkara, J. (dissenting):
Even if one were to assume that this association or the union betweenthe accused and the prosecutrix does not meet the requirements of civillaw concept of marriage by habit and repute the factual circumstancesof this case do not warrant the inference that the accused had aninention of committing rape.
Even in the absence of a ceremony as contemplated by civil law in acase of marriage by habit and repute the possibility of raising such adefence in a criminal matter should not be overlooked.
The Code of Criminal Procedure section: 164(4) states that the law andthe section under which the offence is said to have been committed ispunishable shall be mentioned in the charge. Sec. 166 lays down thatany error stating whether the offence or the particular reference to bestated in a charge and any omission or particulars will not be regardedas material unless the accused has been misled by such omission orerror.
The accused has been charged on the basis that he has committedrape within the jDeriod of 7 months. The charge should be formulated onthe basis that accused did commit rape under section 362 (2) (e) readwith section 363 (e). A blank statement that the section under whichliability is entailed section 364 (2) perse would not suffice, and chargesshould be separated.
Sarathchandra v. Attorney-General
(Balapatabendi. J.)
43
CA
Per Nanayakkara, J.
“I do not think the civil law concept which the State Counsel attemptedto bring into this issue would help one to formulate the criteria for thedetermination of a criminal charge which is levelled against theaccused.”
APPEAL from the judgment of the High Court of Balapitiya.
Cases referred to:
Dinohamy v Balahamy – 29 NLR 114
Punchi Nona v Charles Appuhamy- 33 NLR 227
Dr.Ranjit Fernando with HarshaniGunasekera, Himali Kularatne and Ramanide Silva for accused-appellant.
N. D. Priyantha Nawana State Counsel for the Attorney-General
March 23rd, 2004.
BALAPATABENDI, J.The accused-appellant was indicted on a charge of rape 01committed on Vithanage Nirosha during the period from 04.02.1998- 04.09.1998 under section 364(2) of the Penal Code as amendedby Act No. 22 of 1995.
The learned trial judge after trial, convicted the accused-appellant, of the offence as charged and a sentence of. 10 years Rl,and a fine of Rs. 2500/- was imposed. In addition the accused-appellant was ordered to pay Rs. 5000/- as compensation to thevictim.
This appeal is preferred against the conviction and sentence. 10
At the hearing of the appeal, the counsel for the accused-appellant contended that, a) the learned trial judge had erred on thefacts, by failing to consider the evidence regarding the marriagebetween the accused-appellant and the prosecutrix, by “Habit andRepute.”
the learned trial judge had erred in law by not focusing hermind to the applicability of section 363 (e) of the Penal Code asamended by the Act No. 22 of 1995, as the prosecutrix was the wifeof the accused-appellant at the time of the incident, as such theaccused-appellant had committed no offence. Further he 20
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contended that the failure on the part of the accused-appellant totake up such defence at the trial does not estop him from raisingsuch a defence at the Appeal.
Of course I agree with the counsel for the accused-appellant,that the accused-appellant is entitled to take up any defence in <>appeal, based on the evidence.
It was an admitted fact, that the prosecutrix was under 16 yearsof age at the time of the incident.
Facts in brief are as follows:- The .father of the prosecutrix isdead, and she was living with her mother, aunt and uncle. The 30Prosecutrix, had met the accused-appellant at Kande Vihare templein Aluthgama.and be-friended him and fallen in love. The accused-appellant had accompanied her, to her residence, where he hadexpressed his affection towards her to the inmates of theprosecutrix household. As he had refused to leave her, her aunthad given a mattress to the accused-appellant to sleep in aseparate room. That night he has had sex with her, and also on thefollowing night. Two days – later the family members of theaccused-appellant had'ushered her to his parents’ house. Havingstayed with the prosecutrix for about 11/2 months at his parents *ohouse he had left her, stating that he has to report back to the Army.Thereafter, the prosecutrix had stayed with the inmates of theaccused-appellant’s house for about 7 to 8 months, Meantime shewas informed that the accused-appellant had suffered a gun shotinjury while serving in the Army and was hospitalized. The motherof the accused-appellant believing that the prosecutrix had broughtbad-luck to her son, did not allow the prosecutrix to visit him in thehospital. As he returned home he had assaulted the prosecutrix,which compelled her to leave him and come back to her mother.
In support of his contention, the counsel for the accused- soappellant drew the attention of court to the following items ofevidence by which he argued that a presumption of marriage, by’habit and repute’, between the accused-appellant and theprosecutrix had been established.
The fact that:-
the accused-appellant was given a mattress to sleep by heraunt at the first visit.
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Sarathchandra v. Attorney-General
(Balapatabendi, J. )
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when the family members of the accused-appellant wanted tousher her at first to his parental house, the mother of theprosecutrix had prevented it, as it was a Tuesday and inauspiciousday.
the prosecutrix lived with the accused-appellant at hisparental house, for about one and a half months.
the parents of the accused-appellant kept her for about 7 to 8months with them.
In addition, he stated that the abovementioned items ofevidence creates a reasonable doubt as to whether there was amarriage by 'habit and repute’ between them, and that benefit ofthe doubt should be given to the accused-appellant.
The contention of the Senior State Counsel was that, the^.significance of the above items of evidence, indicate nothing butthey lived in ‘concubinage’ for about 1 1/2 months. Also, he statedthat, at the trial, the accused-appellant in his dock statement, hadcompletely denied the incident', and rejected the charge.
. Section 363 of the Penal Code as amended by the Act No. 22 of1995 reads as:- “A man is said to commit ‘rape’ who has sexualintercourse with a woman under circumstances falling under any ofthe following descriptions:- (e) “with or without her consent whenshe is under sixteen years of age, unless the woman is his wife whois over twelve years of age and is not judicially separated from theman”.
In the case of Dinohamy v Balahamy 0) – the facts in brief: -“Don Andiris married Balahamy, with the procession, the giving ofgift, and other ceremonials familiar to the law of Ceylon. Howeverthe marriage was not registered. They lived together as apparentlyman and wife for 20 years, during that period eight children wereborn and all of them lived together as one family.” – Privy Councilupheld, that there was an existence of marriage by ‘habit andrepute’, between them.
Further, in the above case, it had been observed by Lord Shaw:-that “it is not disputed- that according to the Roman Dutch Law,there is a presumption in favour Of marriage rather than
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concubinage, that according to the law of Ceylon, where a man anda woman are proved to have lived together as man and wife, thelaw presumes unless the contrary be proved, that they were livingtogether in' consequence of a valid marriage, and not in a State ofConcubinage.”
In the case of Punchi Nona v Charles AppuhamyP) Akbar, J.observed that “it is manifest from the details, that there was noceremony, no native rite, or custom, observed to constitute them as 100wife and husband. That being so, I consider that the presumptionarising from evidence of cohabitation and ‘habit and repute’ hasbeen effectively rebutted.”
In the present case, there was no evidence, (or even asuggestion) that there was any ceremony, rite, or custom observedwhat so ever at any period of their living together, (about one andhalf months). In addition a presumption of marriage by habit andrepute cannot be drawn in the absence of evidence that the societyor the relations, accepted or recognized them as husband and wife,
As such the contention of the counsel for the accused-appellant 110that the evidence creates a reasonable doubt is untenable.
However,, the evidence available buttress-concubinage,between them.
The only inference that could be drawn on examination ofevidence, was that the family members intended to have themmarried on a future date, once the bond of the accused-appellantwith the Army was completed, as such the issue of a presumptionof marriage by habit and repute between the accused-appellantand the prosecutrix would not arise. It is similar to that of a coupleengaged to be married on a future date.120
The legal issue raised by the counsel is interesting andimportant. I must say counsel for both sides have been of greatassistance to court.
In the above circumstances, I do not agree with the argumentadvanced by the counsel for the accused-appellant. The appeal isdismissed.
FERNANDO, J. – I agree.
Appeal dismissed.
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Sarathchandra v. Attorney-General
(Nanayakkara, J.)
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NANAYAKKARA, J. (dissenting):
I have had the opportunity of going through the draft judgmentof my brother Justice Balapatabendi with which my brother JusticeRaja Fernando had agreed, but I find myself unable to agree withthem.
The accused-appellant in this case who was charged in the HighCourt of Balapitiya with having committed rape on one VithanageNirosha was convicted of the offence and sentenced to 10 yearsrigorous Imprisonment and a fine of Rs. 2500/=.. In default ofpayment of the fine he was sentenced to a further period of 6months rigorous imprisonment. He was also ordered to pay a sumof Rs. 5000/= as compensation and in the event of his failure topay the’ said sum a further period of 6 months rigorousimprisonment. It is against this conviction and sentence that thisappeal has been preferred. The accused-appellant is alleged tohave committed this offence which is punishable under section364(2) of the Penal Code between 4th February 1998 and 4thSeptember 1998 during a period of 7 months..
One could, not help but observe the strange coincidence thatboth the commencement of rape and the terminal date of rape hadoccurred on the 4th of a month. This lends support to the view thatthe prosecution has grave doubts in regard to the actual dates onwhich the accused-appellant is alleged to have committed theoffence. This is significant because there is some uncertaintywhether the accused-appellant indulged in a spree of rape duringthe entire period of 8 months or indulged in one solitary orintermittent acts of rape within the said period. This nebulousnature of charge considered in the background of the imperativelegal requirements relating to clarity of charges raises seriousdoubts whether the charge is not basically flawed and defectiveinasmuch as it tends to mislead an accused person in thepreparation of his defence.
It would be useful at this stage to refer briefly to factualcircumstances which had led to the incident. At the time of thealleged incident the accused-appellant was attached to the Armyand the prosecutrix was living with her uncle and aunt. Theaccused-appellant and.the prosecutrix met each other by chance at
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a Buddhist temple while on a pilgrimage. This first meeting kindledtheir love and affection for each other. Thereafter the prosecutrixhad returned home in the same evening accompanied by theaccused-appellant but her aunt had upbraided her for coming homewith the accused-appellant. Nevertheless, it appears from the 170evidence that the accused-appellant was received and welcomedby elders at the prosecutrix home, when he was permitted to staythat night at her place. In fact the evidence has been led to theeffect that the aunt of the prosecutrix had provided a mat for theaccused-appellant to sleep on that night and it was during this nightthat he was alleged to have indulged in the first act of intercoursewith the prosecutrix. The accused-appellant had also proposedlove and affection towards the prosecutrix, on this day andexpressed his intention to marry her once his period of bonding withthe Army was over.180
Thereafter the accused-appellant’s sisters , and brothers hadcalled at the prosecutrix’s place and taken the accused-appellantaway saying that he had to report for duty at the Army. Theprosecutrix thereafter had lived at the accused-appellant’s housefor about seven months, but during this period exigency of service,kept the accused-appellant away from his home.
It appears that the trouble between the parties arose when theaccused-appellant became disabled as a result of some gun shotinjuries received in the course of his duties as a soldier.
The accused-appellant’s mother who was labouring under 190supertitious beliefs attributed the disability suffered by her son tothe ill luck and misfortune brought into the family fold by theprosecutrix.
This led to disharmony in the family and the accused-appellantwhen he returned from the Army at the instigation of his motherchased the prosecutrix away from their home. This is how a belatedcomplaint of rape came to be made against the accused-appellant.
At this juncture it will be appropriate to consider the provisionsof law applicable to the framing of charges and determine as to 200whether there is compliance or in the event of a non compliance,whether the accused-appellant has been misled thereby in theconduct of his defence which in turn has prejudiced him.
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Sarathchandra v. Attorney-General
(Nanayakkara, J.)
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The Criminal Procedure Code in section 164(4) states that “thelaw and the section of the law under which the offence said to havebeen committed is punishable, shall be mentioned in the charge".Section 166 of the Criminal Procedure Code also lays down thatany error, in stating either the offence or the particulars required tobe stated in a charge and any omission of particulars will not beregarded as material unless the accused has. been misled by suchomission or error.210
It would be opportune to consider now as to whether there wasan error and if so as to whether it was material enough to warrantone concluding that there was a misleading of the accused.
In this case the charge informs the accused that he hascommitted rape within the period of seven months – whether theacts be persistent or sporadic is anybody’s guess-section 174 ofthe Criminal Procedure Code deserves consideration at this stage- according to which when a person is accused of committing moreoffences than one of the same kind committed within the space oftwelve months from first to last of such offences he has to be 220charged with and tried at one and the same trial for any number ofthem not exceeding three instances and in trials before the HighCourt charges may be included in one and the same indictment.
On an appraisal and comparison of these two sections with thenature of the charge framed against the accused serious doubt iscreated in the mind as to whether the apparent non compliancewith the imperative requirements has not gravely misled theaccused-appellant.
Considering the information with regard to the nature of thecharge that the accused has received it is noteworthy that he has 230been merely intimated to, that he faces liability under section364(2) of the amendment pertaining to the Penal Code in Act, 22 of1995.
Section 364(2) encompasses seven instances of liability. In subsections numbered from a to g.
(a) where a public officer or person in authority abuses his position
and rapes a ward –
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where a manager of a remand home or custodial institutionabuses his position and rapes an inmate.
A hospital employee or officer acting in a likewise manner. 240
Rape of pregnant woman.
Committing rape on a woman under 18 years of age.
Raping mentally or physically disabled woman.
Gang rape
In such a situation the mentioning of the particular section andthe sub section to enlighten the accused or his counsel could bedeemed to be a duty incumbent on the part of the prosecution.
The next question to be considered would be whether a blankstatement that the section under which liability in entailed is section364 (2) – per se. would suffice-section 364 (2) states that whoever 250commits rape on a woman under 18 years of age – pre supposesthe fact that entailment of liability will necessarily be with Raping -. Rape is defined in section 364 (2) of the amendment Act 22 of1995. The Five instances are set out and the applicable sub sectionwould be (2) – wherein, Rape is committed when sex is had with awoman under sixteen years old with or without her consent. Itwould not be rape if the subject is over twelve years of age and isnot judicially separated from the man. This is vital information as faras the accused is concerned and according to the requirements ofthe relevant section should be communicated to him via the charge. 260
Therefore, I am inclined to the view that the charge/chargesshould be separate, and if rape has been committed within oneyear on more than one occasion, it must be set out in three chargeswithin the same indictment as stipulated in section 174(1) of theCriminal Procedure Code and the charges should be formulated onthe basis that the accused-appellant did commit rape under section364(2)(e) read along with section 363 (e) of the amended PenalCode Act 22 of 1995.
It would not be so, then section 166 of the Criminal ProcedureCode could be invoked – and it could be regarded as an omission 270that misled the accused.
QASarathchandra v. Attorney-General51
(Nanayakkara, J.)
As an analogy, section 165(2) of the Criminal Procedure Code,is clearly indicative of the fact that the law in its wisdom provides forsituations in so far as different offences are intended to be includedin the same indictment it will state the manner in which it could beaccomplished. The law, thus provides for Criminal Breach of .Trustand Criminal Misappropriation crimes committed by the sameaccused within the year to be included in the same indictment.
There is another important matter to which some referenceshould be made in this judgment.280
The learned Counsel for the accused-appellant at the hearing ofthe appeal for the first time called upon.this court to determine theissues whether the factual circumstances in the case give rise tothe defence of marriage by habit and repute.
On this matter both the Counsel for the accused-appellant andCounsel for the State advanced valuable argument to beconsidered by this court.
It was the contention of the State that to constitute marriage byhabit and repute there should have been some kind of ceremonywhich clearly indicates that the society had accepted the accused- 290appellant and the, prosecutrix as husband and wife. In order tobuttress his argument the learned Counsel drew the attention ofthis court to a number of authorities which have held that should besome ceremony indicating marriage by habit and repute.
The learned Counsel for the State relied mainly on the Civil Lawconcept of marriage by habit and repute to substantiate hisargument. But one should not be oblivious to the fact that in thiscase the accused-appellant, is facing a charge of grave criminalnature. It is evident that there, has been some kjnd of associationbetween the accused-appellant and the prosecutrix which had 300lasted nearly eight months. Even if one were to assume that thisassociation or the union between the accused-appellant and theprosecutrix does not meet the requirements of Civil law concept ofmarriage by habit and repute, the factual circumstances of thiscase, do not warrant the inference that the accused-appellant hadan intention of committing rape on the prosecutrix.
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Considering the circumstantial background of the case, in myview even in the absence of a ceremony as contemplated by CivilLaw in a case of marriage by habit and repute the possibility ofraising such a defence in a criminal matter should not be 310overlooked. The view I take in regard to this matter is strengthenedby the fact , that the prosecutrix had referred to the accused-appellant as her Mahaththya (husband) in her complaint to thepolice, in the manner a wife in the situation of the prosecutrixnormally refers to her husband.
The defence of marriage by habit and repute is a matter whichhas to be determined solely by the factual circumstances andrecognition of such a union may be manifested by evidence ofacceptance and approval or by hostility, animosity and ostracism by 310society and evidence of either kind is acceptable. I do not think theCivil Law concept which the State Counsel attempted to bring intothis issue would help one to formulate a criteria for thedetermination of a criminal charge which is levelled against anaccused.
However before ascertaining whether there was a marriage byhabit and repute in the instance it would be much more importantto determine whether the accused was denied the opportunity ofpresenting his defence in an effective manner by the inadequaciesof the particulars of the charge. This question arises prior to thedetermination of the defence of habit and repute and in my view the 320appellant was misled by an unorthodox framing of charges which isnot countenanced by the provisions relating to framing of chargesby the Criminal Procedure Code. Therefore in my opinion theappeal of the accused-appellant should succeed, on this groundalone.
In view of the abovementioned reasons I disagree with mylearned brothers and hold that the conviction and sentence shouldbe set aside and the accused-appellant acquitted.
NANAYAKKARA, JAppeal allowed.
By majority decision appeal dismissed.