DULIP AND OTHERS

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
KARUNARATHNA, J.
GURUSINGHE, J.
CA/HCC/31-34/2018
HC/AMPARA/1790/17
MC/DEHI/NS/7411
JULY 20, 2021

Criminal law-Gang rape-Penal Code, sections 32, 357, 362(2), 364(g), 380-Evidence Ordinance, section 25(1)-Code of Criminal Procedure Act, No. 15 of 1979, section 110(3)-Contradictions-Confession-Misdirection and non-direction of the jury

The four accused were charged with inter alia rape. Only the 1st accused was alleged to have committed rape on the prosecutrix. She complained to the police about the rape five months after the alleged incident when her boyfriend stated that he could not marry her. At the trial, the 1st accused gave evidence and he was extensively cross-examined on

the statement alleged to have been made by him to the police and contradictions were marked. The High Court Judge neither objected to such evidence being led nor directed the jury to disregard such evidence as inadmissible. There was no direction to the jury on the ingredients of gang rape. All four accused were convicted by the High Court. The accused appealed to the Court of Appeal.

Held:

1. Section 25(1) of the Evidence Ordinance provides that no confession made to a police officer shall be proved as against a person accused of any offence.

2. In terms of the proviso to section 110(3) of the Code of Criminal Procedure Act, a statement of an accused person can only be used to prove that he made a different statement at a different time. That is also subject to the qualification that if the statement as a whole demonstrates or suggests the inference that the accused had committed an offence, then it would come within the prohibition contained in section 25 of the Evidence Ordinance.

3. The appropriate test in deciding whether a particular statement is a confession is whether the words of admission in context expressly or substantially admit guilt or whether taken together in context inferentially admit guilt.

4. It is not solely evidence of the actual terms of a confession that would be obnoxious to section 25(1) of the Evidence Ordinance; any evidence which if accepted would lead to the inference that the accused made a confession to a police officer would also be inadmissible.

5. The cumulative effect in marking such purported contradictions was that the 1st accused made a confession to the police. There was no proper direction on the ingredients constituting gang rape. The convictions cannot stand.

Cases referred to:

1. Obiyas Appuhamy v. The Queen 54 NLR 32
2. Anandagoda v. The Queen 64 NLR 39
3. The Queen v. Abadda 66 NLR 397
4. Punchi Banda v. The State 76 NLR 293
5. Babysingho v. Queen 75 NLR 451

APPEAL from the Judgment of the High Court of Ampara.

Anil Silva, P.C., for the Accused-Appellant.

Dilan Ratnayake, D.S.G., for the Attorney General.

cur. adv. vult.

August 6, 2021

GURUSINGHE, J.

The accused-appellants (appellants) were indicted in the High Court of Ampara for having committed the offences of:

i. Abduction of the prosecutrix to cause her defilement as punishable under section 357 read with section 32 of the Penal Code under count No. 1;

ii. Gang rape on the prosecutrix punishable under section 364(9); read with section 362(2) of the Penal Code in count 2-5; and

iii. Robbery of a sum of Rs. 3,000/- from the possession of PW2, an offence punishable under section 380 of the Penal Code.

After the trial by jury, all the appellants were found guilty by the verdict of the jury.

The 1st accused-appellant was sentenced to 35 years of rigorous imprisonment for counts 1, 2, and 6. In addition, there was a fine and a default term.

The 2nd, 3rd, and 4th accused-appellants were sentenced to 27 years rigorous imprisonment each and a fine, with default terms.

The impugned Judgment and sentences were challenged before this Court on several grounds.

The prosecution led the evidence of