The King t>. AriyarcUna.
[ComaT of Cbiuinal Appeal.]
1946 Present : Cannon J. (President), Jayetiieke and Bose JJ.THE KING v. ARIYARATNA.
21—M. C. Negombo, 44,343.
Rape—Consent—Misdirection—Penal Code, s. 364.
In a prosecution for rape it does not follow necessarily that becausethe accused’s defence was that he had no connection with the womanthe question of absence of consent was therefore irrelevant.
PPEAL against a conviction by a Judge and Jury.
(1944) K. B. 442.
* (1944) A. C. 315.
CANNON J.—Tht King tv Ariyctralna.
M. M. Kumarakulasingham (with him T. A. de Wije&undera), for theaccused, appellant.
T. S. Fernando, C.C., for the Crown.
March 27, 1946. Cannon J.—
The appellant was convioted of rape of a girl aged 17. He is said to boaged about 30. The Crown case was that she was employed at the samecamp as the accused on labour work and on the day in question whenwork was finished and the workpeople were leaving, the accused wentto the girl and threatening her with a knife which he showed to hermade her accompany him into some scrub jungle where a few hourslater he raped her. He then left her saying he was going for somemoney and clothes, and affcer about quarter of an hour one Kamal Haas,another employee at the camp, came along and took the girl to a neigh-bouring house of a woman where she spent the night. It is said that thescene of the crime was near a footpath which was used by labourers goingto and from the camp and that was how Kamal happened to be at thescene. The next day she went home but did not tell her sisters all thathad happened, merely stating that she had been threatened with assaultby the accused. Her mother was not at home and did not return homeuntil the next day when the girl in reply to a question by the mother saidthat she had been raped but did not mention the accused’s name althoughshe said that she knew it and could identify him.
He defence was that the accused had had nothing to do with the girl,that there was no corroboration of her story in the legal sense, that is,implicating the accused, although her evidence that someone had con-nection with her arid that she was before the incident a virgin wascorroborated, because the doctor verified her evidence on that point. Thewitness Kamal was said to have absconded.
There are two main grounds of appeal, namely, (1) regarding thesumming-up on the question of consent, and (2) the judge’s directions oncorroboration. On page 5 of the summing-up the judge is recorded assaying :
“ The burden of proof is on the Crown. The Crown must provethat this accused committed this offence and that it was done againstthe will of the woman, or if it was with her consent, that her consentwas obtained by fear of death or of hurt. In this case, fortunately,you are not concerned with the second point. Here you are con-cerned with the identity of the person who committed the act. If itwas the accused, then you are on safe ground in holding that it wasdone against her will, or at least that her consent was obtained whenshe was in fear of death or of hurt. It is not the case of the accusedthat the girl went with him with her consent on this day to havesexual intercourse with him. His case is that he had nothing to dowith her. So you are really concerned with the first point—was itthis accused who had sexual intercourse with the girl ”
Jff. M. Perera v. Police.
Now, it is correct that in other parts of the summing-up the learned,judge directs the jury upon the necessity of proving absence of consent,but emphasis was made by Mr. Kumarakulasingham in his able presenta-tion of the case to us that the passage which I have read is of a categoricalnature. It may be that the judge meant the jury to understand that ifthey did not accept that view of the defence, it being that the accusedhad had no connection with the girl, then if they believed the girl’s storythat ho had, they would have no reasonable anxiety as to the truth of herstatement that it was against her will; but the passage seems to directthe jury that the question of consent is not a matter for their consideration.It does not follow necessarily that because the accused’s defence was thathe had had no connection with the girl that therefore the question ofconsent was irrelevant.
Crown Counsel, Mr. Fernando, concedes that the jury may havethought that the question of consent was a matter of minor importanceand for that reason feels unable to support the conviction. We are of thesame opinion and it is therefore unnecessary to go into the question ofcorrob oration.
The appeal is allowed and the conviction quashed.