HOWARD C.J.—The King v. Themis Singho.
[Court of Criminal Appeal.]
-1944 Present: Howard C.J., Moseley and Wijeyewardene JJ.THE KING v. THEMIS SINGHO.
51—M. 0. G-ampaha, 18,870.
Conviction should not be allowed to stand.
In a charge of rape it is proper for a Jury to convict on the uncorro-borated evidence of the complainant only when such evidence is of sucha character as to convince the Jury that she is speaking the truth.
The Court of Criminal Appeal will set aside a conviction when it'thinks it safer on the whole that the conviction should not be allowedto stand.
PPEAL against a conviction by a Judge and Jury before the 1stWestern Circuit.
J. E. M. Obeyesekere (with him M. M. Kumarakulasingharri), for.appellant.
E. H. T. Gunasekera, G.G., for the Crown.
Gut. adv. vult.
May 29, 1944. Howard C.J.—
In this case the Court granted leave to the accused to appeal from hisconviction on a charge of rape. No objection has been taken to the chargetoi the learned Judge, but it has been argued by Mr. Obeyesekere, onbehalf of the appellant, that the verdict is unreasonable. There is nocorroboration of the story of the complainant Mary Nona. But the Jury,in spite of being warned of the danger of convicting without such corro-boration, have found the accused guilty. In previous cases we havepointed out that this Court cannot re try cases upon issues which havebeen properly left to the Jury. The Jury in this case were warned thatthe burden was on the prosecution not only to prove that the appellanthad had sexual connection with Mary Nona, but also that such con-nection was against the latter's will. The medical evidence was almost
Rule on Proctor Joseph Gerald Fernando.
negligible so far as it afforded any evidence of a struggle. Although,there was a small contusion inside the vagina, the hymen was intact.Mary Nona stated that after the alleged assault on her by the accused,the first persons she met were A merasinghe and Caroljs. She made nocomplaint to these men. She explains this omission by the excuse thatthey were friends of the accused. She then says she met Sethan Perera.No complaint was made to Sethan although he was a person of substancein the village. Sethan in giving evidence states that, when he met MaryNona, she was in the company of her aunt, Podi Nona. Podi Nonawas not called to give evidence and Mary Nona states that she has norecollection of seeing her soon after the alleged rape had taken place.Mary Nona is contradicted by every witness who gave evidence. More-over in the Magistrate’s Court she stated that" the accused had hadintercourse with her thrice. Mr. Gunasekera, on behalf of the Crown,has pointed out that this is not a case of oath against oath. Henceas the appellant did not go into the witness-box the verdict should beallowed to stand.
No doubt in certain circumstances it is right and proper for the Juryin a rape case to convict on the uncorroborated evidence of the complain-ant. But it is only when the evidence of the complainant is of such acharacter as to convince the Jury that she is speaking the truth. It isdifficult to understand how Mary Nona’s evidence could have made-such an impression on the Jury.
We adopt the words of Alverstone L.C.J., in setting aside the verdictin Rex v. Bradley 1 when he said “ On the whole we think it safer that,the conviction should not be allowed to stand.” The appeal is allowed.
THE KING v. THEMIS SINGHO