HOWARD C.J.—The King v. Baanayake.
[Court of Criminal Appeal.]
1948 Present ; Howard C.J. (President), Jayetileke and Windham JJ.
THE KING v. BASNAYAKE.
Appeal No. 11 of 1948.
8. C. 13—M. G. Kurunegala, 25,415.
Court of Criminal Appeal—Charges of unlawful assembly, abduction and rape—Corroboration of complainant on charge of rape—Failure of Judge to directJury—No corroboration in fact—Accused entitled to acquittal.
Five accused were charged with being members of an unlawful assemblywith the common object of abducting one K and with having abducted her,and the appellant was also charged with the rape of K. The trial Judge direc-ted the Jury that if they found that there were less than five persons in theassembly, the first charge failed; that if they found it was an elopement andnot an abduction, the second charge failed. He did not however warn themthat, in that event, they could not convict the appellant on the third chargeunless the evidence of K was corroborated. The Jury acquitted the accusedon the first and second counts.
Held, that the verdict showed that there was not in fact corroboration of theevidence of 1C and that in the absence of such a warning by the Judge theconviction must be set aside.
Appeal from a conviction in a trial before a Judge and Jury.
H. V. Per era, K.C., with M. M. Kumarakulasingham, for the accused,appellant.
H. A. Wijemanne, Grown Counsel, for the Crown.
Cur. adv. vull.
May 3,1948. Howard C.J.—
The appellant along with three others who were acquitted were-indicted with being members of an unlawful assembly the commonobject of which, was to abduct one Kamalawathie Senanayake in orderthat she may be forced or seduced to illicit intercourse. The secondcount in the indictment charged the accused with abducting the said.
HOWARD C.J.—The King v. Basnayake.
Kamalawathie Senanayake in prosecution of such common object ■withintent that she may be forced or seduced to illicit intercourse. A thirdcount charged the appellant with committing the offence of rape on thesaid Kamalawathie Senanayake. The accused were all acquitted on thefirst and second counts, while the appellant was convicted on the thirdcount and sentenced to three years’ rigorous imprisonment. Theevidence established that the appellant and Kamalawathie, both of whomwere school teachers, had been engaged to be married. According toKamalawathie her affections towards the appellant cooled off and onDecember 25, 1944, the engagement was broken off. On January 2,1945, Kamalawathie went to stay in the house of one Mudiyanse Vidaneat Diullegoda. This house was about half a mile from the DiullegodaSchool where she was teaching. The appellant was teaching at theBalalle School till May, 1945. Kamalawathie states that for about 3months she went to the school accompanied by Kusalhamy’s wife. OnMarch 12, 1945, when returning from the school the appellant barred herway and asked her why she did not like his marriage proposal. On thefollowing day Kamalawathie complained to the Aratchi about theappellants behaviour. On May 30, 1945, Kamalawathie states that sheset out for the school as usual accompanied by a fourteen-year boy calledMartin who carried her tiffin basket. She says that she was going alongthe V. C. road when the third accused came along with a gun and walkedahead of her. Two other men came behind her one of whom was thefourth accused. Near the house of one Kapuru Banda she called thelatter and told him she wanted him to post some letters at Nikaweratiya.As she turned to go the fourth accused and another man stoodbehind her and the fourth accused told, ner that the gentleman who wastransferred from Balalle to Karambe School had come to see her. Shesays that at that time she knew the appellant had been transferred fromBalalle to Karambe. She maintains that she told the fourth accusedthere was no necessity for her to talk to the appellant and she must goto the school. The third accused came armed with a gun and as theywere going towards the school the fourth accused lifted her bodily andcarried her to a car which came towards them reversing. She says shestruggled and raised cries. The appellant was in the back seat of thecar and the second accused was at the wheel. Though struggling shewas put in the back seat and the car drove off. She was crying andweeping. The appellant threatened her with a knife. She was firsttaken to an estate bungalow and then to a house in a coconut grovewhere an old woman and a man by the name of Kiri Mudiyanse wereliving. While there the appellant got her to sign certain documents andprinted forms. One of these documents was an application by Kamala-wathie for leave. She says that she signed them and filled in the gapsthrough fear. When night time came the appellant invited her to come tothe bed. He then pulled her on to the bed. She cried out but no onecame. He threatened to stab her and then had intercourse with her twiceforcibly. On the second night he again had intercourse with her alsoforcibly, according to her story. On the following day about 1 or 2 p.m.the appellant received a warning and then said to the girl “The Policewould be coming to arrest us. If you remain here you will disclose
HOWABD C.J.—The King v. Bctsnayake.
everything that took place. Therefore I must take you to the jungleKamalawathie says that he then dragged her to the jungle with the helpof Kiri Mudiyanse and the man who brought the warning message.The Police arrived about 5.30 or 6 P. m. Kamalawathie says that whenshe saw them she ran towards, them and the appellant followed. Shehad previously, so she contends, concealed the knife with which theappellant had threatened her. She handed the knife to Police ConstableFernando telling him that it was the knife with which the appellantthreatened her life. The Police then arrested the appellant. They thenwent to Kiri Mudiyanse’s house where Kamalawathie says she told P. C.Fernando about the rape. Kamalawathie’s story about the abductionwas corroborated by the boy Martin. Kamalawathie was examinedby the District Medical Officer, Maho, on June 2, 1945, who found thatthe hymen showed signs of a partial and recent rupture. There were noinjuries on the rest of her body.
The main ground of appeal advanced by Mr. H. V. Perera on behalfof the appellant is that the Jury were not warned by the learned Judgethat it was not safe to convict the appellant of rape on the uncorroboratedevidence of Kamalawathie. In this connection we were referred to thecase of The King v Ana Sheriff1. If there was in fact corroborationthe warning would not in law be necessary. Moreover, if it could betaken as proved that Kamalawathie was abducted as she maintained,then no doubt such abduction would supply the necessary corroboration.The difficulty in holding that such abduction has been proved arises fromthe verdict of the Jury. The Jury have found the accused not guiltyon the first two counts. They have therefore negatived an unlawfulassembly with the common objective of abduction and also abductionin prosecution of such common object. Mr. Wijemanne for the Crownhas argued that the only significance of this verdict on the first twocounts is that the Jury were not satisfied that five or more persons tookpart in the abduction. The verdict does not, so he contends, negativean abduction. In this connection he has invited our attnention to certainpassages in the learned Judge’s charge. At page 6 it is stated that theJury must find there were at least five persons to constitute an unlawfulassembly. Again on page 10 the learned Judge states as follows :—
“ So that, if in the early stages of your deliberations you are satisfiedbeyond resonable doubt that only these four accused were presentand that the fifth accused is just imagination, then the whole casecollapses—I mean the first and second counts of the indictmentcollapse. The first and second counts on the indictment are thecounts which involve all these accused in the dock.”
On page 47 it is stated as follows :—
“ If you think it is a case of elopement, then the second count of the-indictment falls to the ground just as the first count of the indictmentfalls to the ground if there were not five people in this assembly.Nobody pretends that there were more than five. The case for theCrown is that there were just five. That is a circumstance which youwill take into consideration. They have committed themselves to five.
1 (7547) 42 N. L. R. 169.
HOWARD C.J.—The King v. Baanayake
If you find, that there were not five then the first count fails. If youfind that this girl went of her own free will the second count fails. Ifyou find that the girl was taken away by force, then the second countis established.”
Again on pages 50 and 51 the following passage occurs :—
“ But now you have got the whole case, at least the salient points ofthe case, before you, and as Crown Counsel put it in the forefront ofhis address to you a moment ago, it is for you to put yourselves in theplace of Kamalawathie as far as it is possible to do so, and havingregard to all these matters which you have now before you, you willask yourselves the simple question whether this is a case of elopementor of an abduction. If it is a case of elopement the whole case falls tothe ground and you will acquit the accused. Again, if you are satisfiedthat there were no more than these four accused concerned in thisyou will acquit the accused on counts 1 and 2. You will acquit allthe accused on all the counts if you find that this was an elopementand that the woman willingly surrendered herself to the accused onthe night of the 30th and 31st. But if you hold that this was anabduction by five people then the first and second counts are madeout. If you hold that there were not five people but only four, asadmitted by the first accused, then the unlawful assembly chargefails, and having regard to the manner in which the indictment hasbeen framed the abduction charge also fails. Then all that remainsfor you to consider is whether the first accused is guilty of rape. Inregard to that you will find him guilty of rape if you find that sexualintercourse occurred against the will of the girl and without her consent.But if you find that it was with her consent then the charge of rapealso must fail.
If you have any reasonable doubt on any of these matters theaccused is entitled to the benefit of the doubt. If you have no reason-able doubt in regard to these questions and if you are satisfied thatthere was an unlawful assembly, that there was abduction andthere was rape, you will not fail to bring in a verdict which you oughtto bring in accordance with your finding. If you find that the firstaccused is guilty you will not say now that the whole thing has beendone and this woman has got married to another you will acquit theaccused, but if you have any reasonable doubt you will give the benefitof the doubt to the accused. ”
The learned Judge seems to have told the Jury that they must decidewhether it is a case of abduction or elopement. If there were not fourpersons in the assembly then counts 1 and 2 fail. Also that count 2 failsif the girl went of her own free will. The Jury have found that bothcounts 1 and 2 fail, and in our opinion the appellant must be given thebenefit of the doubt and the inference to be drawn from that verdict isthat it was an elopement and not an abduction. In the circumstancesthe finding of the Jury that the appellant was guilty of rape is not easy tocomprehend- There was no warning in the charge that, so far as thecharge of rape was concerned, the Jury should look for corroboration.
WIJEYEWARDENE A.C.J.—Lambadusuriya v. Robins
If it was mi elopement, there was an absence of corroboration and theattention of the Jury should have been drawn to the fact -that if theyconvicted of rape after finding that it was an elopement and not anabduction they would be acting on the uncorroborated testimony ofKamalawathie. In the absence of such a warning the conviction must be-set aside.
Conviction set aside.