PERERA
VS.
ATTORNEY GENERAL
 

COURT OF APPEAL
SRISKANDARAJA,J.
RANJIT SILVA,J. ·
CA 138/2003
HC NEGOMBO 179/2001
JANUARY 8, 16, 2007 

Penal Code - Section 363 (e) - Amendment 22 of 1995 - Rape -What constitutes rape ? - Penetration - Credibility of victim - Corroboration and "Lucas principle" - Uttering falsehoods on material particulars -Abducting a girl of marriageable age - Natural presumption - Extension of it to all abductions? Evidence Ordinance - Section 11 (b).

The accused - appellant was indicted of having committed statutory rape on P - Section 364 (2)(e) - and after trial was found guilty. Sentenced to a term of 15 years R.I.

In appeal it was contended that the evidence led in the case was insufficient to prove penetration which is the all important element in a rape case.

HELD

Per Ranjith Silva, J.

"The slightest' penetration of the penis within the vulva, such as the minimal passage of glans between the labia with or without the emission of semen or rupture of hymen constitutes rape. There need not be a completed act of intercourse. Rape can be committed even when there is inability to produce penile erection. Rape can occur without causing any Injury and as such negative evidence does not exclude rape".

(1) It is inconceivable that one could apply the tests of contemporaniety or spontaneity in rape matters especially in child rape matters, a fair amount of coaxing and persuasion which is justified under the circumstances is needed to extract the evidence from the victim.

(2) There was independent corroboration that was supplied by the accused himself that augmented and strengthened the case for the prosecution. The accused himself corroborated the victim by uttering
falsehoods on material particulars deliberately to escape liability.

The principle laid down in " Lucas " case - that the statements made out of Court or in court which are proved or admitted to be false in certain circumstances amount to corroboration - Lies proved to have been told in court by a defendant is equally capable of providing corroboration . A lie told out of Court or in Court will amount to corroborating if they satisfy the following requirements: 

(1) it must be deliberate ;
(2) it must relate to a material issue
(3) the motive for the lie must be realization of guilt and a fear of the truth .
(4) The statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated that is to say - admission or by evidence from an independent witness.

(3) The evidence if not corroborative - should at least show consistency of the evidence of the victim. Although corroboration is not a sine qua non , here there is negative evidence - like hymen intact - it would be discreet to look for corroboration .

Per Ranjith Silva, J.

"The natural presumption when a young man abducts a girl of marriageable age is that he abducted her with the intention of having sexual intercourse with her consent after seduction or after marrying her.  I cannot see any reason why this presumption could not be extended mutatis mutandis to read as "when a male lures away a female to an isolated spot and then keeps her in wrongful confinement in order to gratify his sexual needs does so with the intention of having sexual intercourse - if any other intention is alleged to exist the burden is on the accused to prove It".

APPEAL from the judgment of the High Court of Negombo .

Cases referred to :

1. Bandara vs . the State 2001 2 Sri LR 63
2. King vs. Burke 43 NLR 465
3. Rex vs . Lucas 1981 2 All ER 4008
4. Karunanayake vs. Karunasiri Perera 1982 2 Sri LR 27
5. Mohomed Sadiq vs . Emperor 1938 AIR Lahore 474
6. K vs . Wegodapola 42 NLR 456

Dr. Ranjith Fernando with Amita Udayanganie, Nirosha Dilhani and Yamuna Kumari for accused - appellant.
 

S. Thurairajah, SSC with Lakmini Girihagama SC for respondent
 

Cur. adv. vult.