MOSELEY S.P.J.—The King v. Musthapa Lebbe.
[Court of Criminal Appeal.]
1943 PresentMoseley S.P.J., Keuneman and Wijeyewardene JJ.
THE KING v. MUSTHAPA LEBBE.
M. C. Kalmunai, 28,678.
Court of Criminal Appeal—Finding of. fact—Verdict of jury—Court has ateal doubt as to guilt of accused—Verdict set aside.
The Court of Criminal Appeal will not interfere with the verdict of ajury unless it has a real doubt as to the guilt of the accused or is ofopinion that on the whole it is safer that the conviction should not beallowed to standi«.
PPEAL from a conviction by a Judge and jury on the secondEastern Circuit, 1943.
M.M. Kumarakulasingham (with him G. Thomas), for appellant.
E. H. T. Gunasekera, C.C., for the Crown.October 4, 1943. Moseley S.P.J.—
Cur. adv. vult.
The appellant was convicted of rape. The act of intercourse is admittedand the only issue to go to the Jury was the one of consent. The storyof the girl is that she was sweeping the compound of her house whenshe was seized from behind by the appellant, pulled into the house inspite of her resistance, placed upon the floor and raped. Her storyin respect of what occurred outside the house is corroborated by theevidence of three persons who claim to have been eye-witnesses of thestruggle which she says took place there. They are Aliar, a boy of tenor twelve years of age and a cousin of the girl, Adam Kandu and Kalan-den Lebbe, both next-door neighbours of the girl and either distant orso-called relatives. As to the events which followed inside the house-there is only the evidence of the girl. Her story is that she resisteduntil she realized that resistance was futile. As she somewhat naivelyput it “ I did not wish to struggle to the extent of preventing, the accusedfrom having intercourse with me. ” She explained that statement bysaying that she realized the futility of struggling with a man who was'stronger than herself. Parenthetically it may be observed that themedical witness was of opinion that the girl, who is twenty-two yearsof age, and the appellant are equal in strength. The injuries foundon the girl were an abrasion on the cheek, an abrasion on the breast,and congestion of the left outer labia. The first two injuries are saidby the girl to be due to bites by the appellant; the injury tp the -labiato the forcible introduction of the appellant’s' penis. In this connectionthe appellant was not found to have suffered any injury. The hymenof the girl was found to hat'e been ruptured, the injury, being severalmonths old. The appellant, while setting up an act of voluntary inter-course, does not account for the abrasions to the cheek and breast. Afurther circumstance worthy of note is that the'eaves off the house areadmittedly very low and would provide a serious obstacle to a forcible
506MOSELEY S.P.J.—The King v. Musthapa Lebbe.
carriage of the girl into the house without injury to her. Moreover,she said that she entered the house in advance of the appellant. We danot think it can be said that the above-mentioned circumstances go anydistance towards corroborating the ■ girl’s evidence that she was an.unwilling party.
In regard to the three eye-witnesses, they cannot claim to be entirelydisinterested. Counsel for the appellant sought to discredit theirevidence on the ground not only that they are all related, in varying.degrees, to the complainant, but that there was considerable delay in therecording by the Village Headman of their statements. On the latterpoint the evidence is somewhat conflicting, but, apart from the firstinformation which was carried to the Village Headman by Adam Kandu,there would seem to have been ample time for the concoction and em-broidery of a story. Adam Kandu, indeed, in his statement, gave•details bf a struggle in the compound, but at the trial in cross-examination ■he confessed that he was unable to say whether the struggle was real orfeigned. A similar attitude was adopted by Kalanden Lebbe. Thiswitness, for reasons best .known to himself and which he was unableto formulate, adopted the extraordinary course of locking the couple in thehouse and taking the key to the Village Headman. Neither of thesewitnesses, both "ble-bodied men, and relatives of the girl, made theslightest move towards rendering assistance to the girl, although the mereappearance of either on the scene would no doubt have been sufficientto prevent the act of intercourse whether it were forcible or voluntary.The account given by the boy, Aliar, convincing enough intrinsically,lost some ,of its value, by his somewhat premature and spontaneous-denial that he had been tutored, a possible inference being that his•rstory has been at least embellished.
Passing' on to events subsequent to the act, the Village Headmanaccompanied by Adam Kandu and Kalanden Lebbe arrived. at the.scene. With them, or following closely on their heels, were some Marik-kars. The door was opened and apparently the girl lost no time in•accusing the appellant of the offence. There appears to have followeda long discussion during which, according to the appellant, pressurewas brought upon him to marry the girl. The girl herself spoke to theMarikkars’ suggestion of marriage and to the appellant’s rejection of thesuggestion. Whatever was the object of the discussion, the fact remainsthat, according to the Village Headman, he was occupied from< about5 p.m. until 9 or 10 p.m. in recording the statements of three people whichrecording amounted to fifty lines of his diary. The possibility certainlypresents itself that there must have been a certain amount of discussionas well, which would lend colour to the claim of the appellant that the•question of marriage was brought up. There can be no doubt thatprior to the incident there had been a proposal of marriage between theparties, a fact which Was denied at the trial by the girl until she wasconfronted by her depositions in the lower Court. Knowledge of thisfact was also denied by the other eye-witnesses and by the VillageHeadman although it is scarcely credible that it was unknown to themhieing, as they were, relatives or near neighbours. It is also pertinentto remark that, according to the girl, she remained lying on the floor after
MOSELEY S.P.J.—The King v. Musthapa Lgbbe.
the act until the door was opened, while the appellant was found to besinging. The jury might well have asked themselves whether thesecircumstances are more consistent with the aftermath of an act of rapeor one of voluntary intercourse. Another circumstance, which isperhaps in favour of the story of the appellant that this was a plot so tocompromise him with the girl that he would be forced into a marriagewith her, is that, whereas the Village Headman came on the spot soonafter 4.30 p.m., the girl was not taken for medical examination untilnoon next day. His case was that he was ready and willing to marrythe girl, and always had been so-provided a dowry was forthcoming,and that it was only a#ter the importunities of the Marikkars had failedthat this charge was brought against him. Moreover, evidence had beenled by the prosecution that, if a Muslim man and woman were found insuch circumstances, the punishment prescribed is a whipping or finefor both, unless it can be shown that the woman was not a consentingparty. Punishment can be avoided if the parties marry. It is thereforea matter of importance to the woman that she should prove absence ofconsent. Her anxiety in regard to this might conceivably be sharedby her relatives.
It seems to us, in view of all these circumstances, that there must exista reasonable and substantial amount of doubt as to the guilt of theappellant. This Court has, however, repeatedly laid down that, assuminga proper direction by the Judge, it is not its function to re-try a' caseunless it has been shown to the satisfaction of the Court that the verdictis unreasonable or that it cannot be supported having regard to theevidence. There is, in our opinion, as we have indicated, a real doubtas to the appellant’s guilt. In Rex v. Isaac Schrager1 the conviction wasquashed because “ in^ all the circumstances it did seem to the Courtthat there was a reasonable and substantial amount of doubt as to theguilt of the appellant. The conviction, therefore, could not stand.”Again inRex v. John Reuben Parker2 where, in the opinion of the L. C. J.“ there was evidence before the jury upon which they could act ” therewas held to be sufficient doubt as to the accuracy of the verdict for theCourt to give the appellant the benefit of it, and the conviction wasquashed. Even in the light of these authorities we are doubtful if weshould be disposed to interfere in the present case were it not for onecircumstance. The appellant gave evidence on his own behalf and theJury, who seem to have followed the case throughout with great interest,cross-examined him at some length. One question put to him was this—“Was it reasonable to let down a girl after you had several acts of
intercourse with her—to let her down because you were not getting
the dowry 7 ”.
It was argued on behalf of the appellant that the question indicatesthat the Jury had formed an opinion unfavourable to the appellant’scharacter and that they were prepared to convict him, not'becausethey were convinced that he had committed the offence, but because,after hearing his evidence, they regarded him as a young blackguard.Crown Counsel sought to explain the question as-an' intimation by theJury that they found themselves unable to accept the appellant’s story.
1 6 Cr. App. B. 253.* 6 Cr. App. B. 285.
D. V. Samaranayake and K. A. Comelis.
We were not impressed by that view and we feel it highly probable thatthe Jury had formed the view ascribed to them by Counsel for theappellant. To adopt the words of the L. C. J. in setting aside the verdictof the Jury in Rex v. John Alfred. Bradley 1 “ on the whole we think it saferthat the conviction should not be allowed to stand The appeal isallowed.