THE QUEEN v. M. MURUGESU and 3 others

003-NLR-NLR-V-65-THE-QUEEN-v.-M.-MURUGESU-and-3-others.pdf


SANSONI, J.—The Queen v. Murugesu
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[In the Cotjet of Ckebunal Appeal]
Present: Sansoni, 3. (President), H. JJ. G. Fernando, J., andB. de Silva, J.THE QUEEN v. M. MURUGESU and 3 othersAppeals Nos. 190-193 of I960, with Applications Nos. 213-216
S. C. 39—M. C. Jaffna, 15,528
Abduction—Quantum of evidence—Use of force—Inference of guilt therefrom—PenalCode, ss. 357, 364.
Where, in a prosecution for abduction under section 357 of the Penal Codethe forcible abduction of a girl is proved beyond question, it is impossible, inthe absence of any evidence suggesting such a conclusion, to hold that she wentwith the accused willingly. In such a case, the offence of abduction with thenecessary intention is complete, whether or not rape was committed subsequentto the abduction or even if the girl had intercourse willingly with the accused.
Appeals against four convictions in a trial before the Supreme Court.
Colvin R. de Silva, with V. Karalasingham, for the 1st accused-appellant.
J. V. G. Nathaniel, for the 2nd accused-appellant.
M. M. Kumarakulasingham, for th3 3rd accused-appellant.F. X. J. Rasanayagam, for all accused-appellants (assigned).T. A. de S. Wijesundera, Crown Counsel, for the Crown.
March 20, 1961. Sansoni, J.—
Cur. adv. vult.
The four accused were indicted on the following counts:—
That on or about the 28th day of November, 1958, at Kandy Road,
Aryalai, in the division of Jaffna within the jurisdiction of thisCourt, you did abduct Poopathy, daughter of Sangarapillai,with intent that she may be forced or seduced to illicit inter-course or knowing it to be likely that she will be forced ot seducedto illicit intercourse, and that you have thereby committed anoffence punishable under section 357 of the Penal Code.
In the alternative to count 1 above :
That at the time and place aforesaid, you the first accused above-
named, did abduct the said Poopathy with intent that she maybe forced or seduced to illicit intercourse or knowing it to be
SANSONI, J.—Ths Quam v. Mvrucwu
likely that she will be forced or seduced to illicit intercourse,and that you, the first accused abovenamed, bare thereby com-mitted an offence punishable under section 857 of the Penal Code.
In the alternative to count 1 above :
That at the time and place aforesaid, you, the second, third and
fourth accused abovenamed, did abet the first accused above-named in the commission of the offence set out in count 2 above,which offence was committed in consequence of such abetment,and that you, the second, third and fourth accused abovenamed,have thereby committed an offence punishable under section357 read with section 102 of the Penal Code.
That on or about the 28th day of November, 195S, at Urumpirai,
in the division of Jaffna, within the jurisdiction of this Court,you, the second accused abovenamed, did commit rape on thesaid Poopathy and that you, the second accused abovenamed,have thereby committed an offence punishable under section364 of the Penal Code.
They were all convicted on all the counts, the jury being unanimous inrespect of the first, second and third counts but divided five to two on thefourth count. Each accused was sentenced to 10 years’ rigorous imprison-ment on the 1st, 2nd and 3rd counts, and the second accused to 15years’ rigorous imprisonment on the 4th count, the sentences to runconcurrently.
The evidence of the girl Poopathy, who was about 16 years old at thetime of the offences, was that on the afternoon in question she waswalking home from school with her friends, two of whom, Elankeswaryand Paramsothy, gave evidence for the prosecution. A car driven by thefourth accused overtook them, and was halted in front of them. Thefourth accused got down from the car. The first accused also got down,came up to her, carried her and put her in the front seat of the car. Shewas held there bv him and prevented from getting out. She cried out andappealed to her friends to help her. The second and third accused wereseated in the rear seat, and after the second accused ordered the fourthaccused to drive off quickly the fourth accused drove the car away.
Somewhere between the spot where this happened and Urumpirai,where she was ultimately taken off the car, the second accused took thewheel and the fourth accused then sat in the rear seat. In the courseof the journey and while the second and third accused were still sittingin the rear seat, her head was tilted back and her mouth was closed bysomebody sitting behind, in order to prevent her shouting out. She wasuncertain as to who exactly did that and who tilted her head back whileher mouth was being dosed. When the car reached a certain house inUrumpirai she was pulled out of it by the first accused, after which thethird and fourth accused left in the car. When it was dark she was takenby the first and second accused and a woman to another house close by.
SANSONI, J.—The Queen v. Mumge.su
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There the first accused ordered her to take off her frock. When shedid not do so he tore it off, and the woman then put a saree and a blouseon her. She also removed her knickers on the orders of the first accused.The first accused then left saying that he had to go to hospital, and hewas not seen again by her.
She and the second accused were locked inside a room of that housefrom outside. They were alone in that room, and she went to sleep ona mat on which the second accused also slept. In examination-in-chiefshe was then questioned as to what happened after she fell asleep andthe questions and answers are as follows :
Q. Then what happened ?
A. While I was fast asleep the second accused got on top ofme and lay on me and held me by his hands.
Q. Then ?
A. Holding me tight.
Court: At this stage the girl starts sobbing.
Witness : Holding me tight, in my female organ he insertedhis male organ.
Q. Then what happened ?
A. I tried my best to dislodge.
Q. Were you able to succeed ?A. I could not.
Q. So then what happened ?
A. After about five minutes, using my full strength Isucceeded in pushing him away.
You said that he inserted his male organ into your female
organ 1A. Yes.
Q. Were you able to feel the second accused inserting his
male organ into your female organ ?
A. Yes.
Q. Was it done with your consent or without your consent ?A. It was done without my consent.
In other words, she claimed that she was awake at the time the secondaccused had intercourse with her. The next morning the second accusedtook her to the back room of a temple and they were locked inside thatroom for the whole day from outside. No advances were made to herby the second accused there. After sunset she was taken by the secondaccused and the young man across a stretch of paddy fields along aroad. A car came along that road. In it were her mother and otherrelations, and the second accused left her and ran away.
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SANSOHI, J.~~TTk» Quemv. Mvntgeau
Counsel appearing for the first and second accused at the trial at onestage told the learned Commissioner, when he was cross-examiningthe girl with legat'd to hear removal in the ear, that hie defence was that
the witness was a willing party. This statement probably related tothe charge of abduction. It was also suggested to the girl that she hadpreviously had sexual intercourse with a cousin of hers called Paraja-sekeram and had broken off that affair and started a love affair with thesecond accused. She denied all these suggestions. With regard tothe circumstances under which the alleged rape was committed, shewas cross-examined and her answers to the questions show that shemaintained the same position as she had done in examination-in-chief,namely, that she was awake when the second accused had intercoursewith her. However, during farther cross-examination a passage fromher evidence in the lower court was put to her where she had said thatpenetration took place while she was asleep, and answers which shegave under further questioning bore out that new position.
It was by no means clear, when Counsel for the third accused beganto cross-examine, that the girl had been consistent in her evidence asto the details of the alleged rape. He was therefore quite entitled tosuggest to her that no penetration had taken place before she woke up.But he was interrupted several times by the learned Commissionerwhen he was cross-examining her on this aspect of the case, and thelearned Commissioner in effect declared that the girl had consistentlysaid that when she awoke penetration had already taken place.
The doctor’s evidence regarding his observations after an examinationof the girl on the morning of the 30th November, 1958, was that hefound no marks at all on her to indicate that any violence had beenused. He admitted that if there had been a trivial injury it could havedisappeared before he made his examination. He found no signs ofrecent tears of the hymen but only shreds of tissues. His opinion wasthat if any rupture of the hymen had taken place that would havehappened over two weeks prior to the day of his examination. Thedoctor admitted that the condition of the hymen was quite consistentwith sexual intercourse having taken place at least two weeks prior tohis examination. The orifice of the vagina was dilated to such an extentthat he was able to insert two fingers with a fair amount of ease, andthis was consistent with her having had sexual intercourse, althoughthere were other possible causes. A perusal of the medical evidenceindicates quite plainly that it did not help the prosecution, and mighteven have helped the second accused on the charge of rape. Bub thecross-examination was mterrrupted on several occasions. For example,
Q. Would you agree that you would have expected to findeffusion, of blood and laceration of private parte ifthere had been any resistance ?
The learned Commissioner intervened before the answer was given andth e following questions and answers were elicited:
SANSONI, J.—The Queen v. Murugesu
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Q. The girl said she was sleeping with face upwards andlegs slightly apart and when she woke up shefound the second accused’s male organ inside herfemale organ. In such a case would you expectany injury ?
A. Not in this particular case.
Q. Then she says she struggled and tried to shake him offand ultimately she pushed him off. In those circums-tances would you expect to find any injury insideher vagina ?
A. In her case I would not expect any injury.
The learned Commissioner was here questioning the doctor as if the girlhad adopted one and only one position.
We do not think it necessary to refer to other instances where thelearned Commissioner intervened in the course of the cross-examination,except to say that some of them were gravely prejudicial to the secondaccused on the charge of rape.
In the course of the summing up, on the charge of rape, the learnedCommissioner told the jury :
“ She stuck to one story, that when she got up she found the maleorgan inside her female organ. Here she says that when she got upshe found the second accused’s male organ inside her private parts ”,
and again:
“ Her evidence here was that when she woke up she found the secondaccused on top of her and his organ was inside her female organ.”
That may have been the impression the learned Commissioner had ofthe girl’s evidence, but it was a wrong impression and the jury wouldundoubtedly have been misled into thinking that this was the one andonly version of the incident which the girl had given.
When dealing with the evidence of the doctor the learned Commissionertold the jury :
“ He said he listened to the girl’s evidence and he said the girl hadstated here that whilst she was sleeping she found the second accusedon her body and when she woke up she found the male organ of thesecond accused inside her female organ. He told you that if that isthe case, he will not expect any injuries on her vagina.”
This is not an accurate reproduction of the doctor’s evidence on thisvital matter, and this version of the girl’s evidence had been put by
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SANSONJ, 3.—STiha Quaen v. Muruffusu
the learned Commissioner to the doctor. We think that on the chargeof rape the second accused was gravely prejudiced by misdirectionsas to the girl’s evidence and the doctor’s evidence. The interventionsof the learned Commissioner seem to show that he held strong views onthe question whether sexual intercourse had in fact taken place andthe circumstances under which it took place. He indicated to the juryvery definitely that intercourse had taken place whilst the girl wasasleep, instead of leaving it to them to find whether it had taken placeat all, and if so under what circumstances. In our opinion the oonvictionof the second accused on the charge of rape must be set aside.
The other charges refer to the abduction of the girl. It cannot besaid that there has been any misdirection which invalidates the convic-tions in respect of those charges. One complaint made against thesumming up on these charges was that the learned Commissioner, indealing with the question of intention which the accused should havehad before they could be found guilty of the offence, told the jury thatthere was a oommonsense principle that a man intends the naturalconsequences of his acta. It would have been better if he had told themthat the actual intention of the abductors could be inferred from thecircumstances, such as the time and manner of removal, the number ofpersons engaged in the enterprise, whether the girl protested or not,whether force was used or not. ‘‘Human nature being what it is,whenever one finds a young man abducting a girl of marriageable agethe first and natural presumption must be that he had abducted her withthe intention of having sexual intercourse with her …. if he had
any intention other than that which is suggested by the natural circum-stances of the case the burden lies upon him under section 106 of theEvidence Act to prove his innocence. Illustration (a) is clearly inpoint.” (See B. v. Mohammed Sadiq1.)
In this case, even if we follow the well-settled rule that the evidenceof the girl is to be treated with caution, her forcible abduction was provedbeyond question, and it is impossible, in the absence of any evidencesuggesting such a conclusion, to hold that she went with the accusedwillingly. Mr. de Silva complained that a proper and correct summingup on a charge of rape was vital to the whole case and to all the accused.He submitted that if the jury found that there had been rape they wouldhave been satisfied with regard to the intent with which the abductorsacted. The question is whether the converse is also true, namely,that if they had found the second accused not guilty on the charge ofrape they would have held the charge of abduction to have failed. Wedo not think so. The offence of abduction with the necessary intentionwas oomplete, whether or not the rape was committed ; whether inter-course took place or not subsequent to the abduction, or even if the girlhad intercourse willingly with the second accused, the proved circum-stances under which her removal took place were sufficient to establishthe charges of abduction.
* A. I. S. {1938) Labor* 474.
SAiTSONI, J.—The Queen v. Murugesu
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Mr. d& Silva’s main complaint was against the whole conduct of thecase; he submitted that the accused had not been given a fair trialbecause of the repeated interruptions of the cross-examination by thelearned Commissioner, his threats to report Counsel to higher authorities,and other remarks made by him against Counsel appearing for theaccused. We were referred to Rex v. Cl&wer1 and James v. National-Goal Board a, where it was held that the frequency and nature of theJudge’s interventions prevented Counsel from presenting their casefairly. If we had thought that the interventions of the learnedCommissioner had affected the accused to this extent prejudicially onthe charges of abduction, we would have had no option but to set asidetheir convictions. But we do not think that the accused wereprevented from properly placing their defence on those charges beforethe jury. We wish to add that Counsel for the first and second accusedwas guilty of certain lapses which caused the learned Commissioner tointervene at times in order to protect the girl while she was undercross-examination.
We have considered the submissions made on behalf of the third andfourth accused whose conduct does not appear to be quite as culpableas that of the first and second accused with regard to the charges ofabduction. The third accused made a statement to the Magistrate onthe 12th December, 1958, in which he accounted for his presence in thecar by saying that he had merely accepted an invitation by the secondaccused. He claimed that he knew nothing of the purpose of thejourney which the second accused had undertaken that afternoon.But there is the girl’s evidence that he was seated in the rear seat withthe second accused when her head was tilted back and her mouth closedin the course of the journey. She was naturally not able to say exactlywhat he did, but it was for the jury to decide whether he was inten-tionally assisting or taking part in this criminal adventure. One questionthey might well have asked themselves, without getting a satisfactoryanswer, was why the third accused continued to sit in that car whilstthis girl was struggling to free herself from the first accused, whilst shewas being forcibly put into the car, and even after it had been stopped toenable the second accused to take the wheel. The same applies to thefourth accused who, in his statement to the Magistrate on the 1stDecember, admitted that he had been told previously that he was requiredin order that a girl might be taken secretly to Urumpirai, and that hedrove this car according to the directions given by the second accused.He was apparently turned out of the driving seat later by the secondaccused when he started shivering whilst driving, but he may have shiveredbecause he was conscious of his guilt aDd not because of his innocence.It is difficult to understand why neither of them went to the assistanceof the girl when she struggled and cried out, if their presence was whollyinnocent, or even protested to the first accused against his high-handedconduct, as one would expect any sensible, innocent man to have done.
1 (1953) Or. App. Rep. 37.
* (1957) 2 A.E.R. 155.
IS
HERAT, J.—Devenmkham v, BamaraeiaQh*
" We affirm the convictions of the accused on the 1st, 2nd and 3rdcounts of the indictment. However, we think that the sentences passedwere excessive and we reduce the sentences passed on the first and. secondaccused on count (1) to 5 years’ rigorous imprisonment; and the sentencespassed on the third and fourth aocused on count (1) to 2 years’ rigorousimprisonment. It is not necessary to pass any sentence on counts (2)and (3) since they are alternative to count (1).
Convictions on counts 1 to 3 affirmed.
Sentences reduced.