RAJANIKANTH AND OTHERS

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WIJESUNDERA, J.
WENGAPPULI, J.
CA/145-148/2016
HC/JAFFNA/1906/15
OCTOBER 26, 2018

Penal Code, sections 357, 364(2)(g)-Gang rape-Non-compliance with sections 150, 151 and 152 read with section 199(3) of the Code of Criminal Procedure Act, No. 15 of 1979-Statements recorded at the preliminary inquiry before the Magistrate's Court-Prejudice and failure of justice-Article 138 of the Constitution-Code of Criminal Procedure Act, sections 436, 456A

The appellants were convicted of gang rape under sections 357 and 364(2)(g) of the Penal Code and sentenced by the High Court. On appeal, the principal argument before the Court of Appeal was that non-compliance with the mandatory provisions of sections 150, 151 and 152 of the Code of Criminal Procedure Act, No. 15 of 1979, read with section 199(3), is fatal to the conviction.

Held:

1. Although section 199(3) of the Code of Criminal Procedure Act enacts that all statements of the accused recorded in the course of the inquiry in the Magistrate's Court shall be read in evidence before the case of the prosecution is closed in the High Court, this does not include the evidence of the accused recorded under section 152 of the Code of Criminal Procedure Act.

2. The defence of the accused before the High Court was a total denial of the charge. Hence non-compliance with sections 150, 151 and 152 has not occasioned a faiIure of justice or affected the substantive rights of the accused. Article 138 of the Constitution and sections 436 and 456A of the Code of Criminal Procedure Code are applicable.

Cases referred to:

1. Ibrahim Janap v. Attorney General (CA/115/2014, CA Minutes of 29.05.2017)
2. Attapattu v. Punchi Banda 40 NLR 169
3. Jayantha v. OIC, Panadura Police Station [1986] 1 Sri LR 334
4. Banwari v. State of Uttar Pradesh AIR 1962 SC 1198
5. Sing v. State of Bihar AIR 2004 SC 4421
6. Punchirala v. Punchibanda 3 NLR 38
7. Hamiappu v. Babaappu 1 SCR 120
8. Regina v. Arthur Perera 57 NLR 313
9. Sheela Sinharage v. Attorney General [1985] 1 Sri LR 1 at 18
10. The King v. Sittambaram 20 NLR 257
11. Sarathchandra v. Attorney General [2008] 2 Sri LR 35
12. Abdulsameem v. Bribery Commissioner [1991] 1 Sri LR 76
13. Attorney General v. Segulebbe Lateef and another [2008] 1 Sri LR 225
14. Karunadasa v. Attorney General [1985] 2 Sri LR 22
15. Mohideen v. Inspector of Police 59 NLR 2117
16. Caldera v. Wijewardene, Inspector of Police 65 NLR 210
17. Randall v. R [2002] UK PC 19
18. R v. Hanratty [2002] Cr. App. R 30
19. Manuel v. Kanapanickan 14 NLR 186

APPEAL from the Judgment of the High Court of Jaffna.

Dr. Ranjit Fernando with S. Pnachardsaran for the Accused-Appellants.

Azard Navavi, S.S.C., for the Respondent.

cur. adv. vult.

February 8, 2019

WENGAPPULI, J.

The four Accused-Appellants (hereinafter referred to as the "Appellants") were indicted before the High Court of Jaffna for committing gang rape on Naguleswaran Jonista on 21.07.2009, an offence punishable under Section 364(2)(9) of the Penal Code as amended.

At the conclusion of their trial without a jury, the Appellants were convicted by the High Court as charged and were accordingly sentenced each of them to serve a fifteen-year term of imprisonment. They were also fined a sum of Rs. 25,000.00 with a default sentence of 2 years.

Being aggrieved by the said conviction and sentence, the Appellants have challenged its validity on the basis that;

a. there has been noncompliance of the mandatory statutory provisions relating to matters which are triable before the High Court as set out in Sections 150, 151 and 152 read with Section 199(3) of the Code of Criminal Procedure Act No. 15 of 979,

b. there is no record whatsoever of any Court Official giving evidence at the trial to confirm due compliance of the relevant mandatory provisions,

c. the trial Court has failed to attach any ma