1950 Present: Dias S.P.J.

COSTA, Appellant, and GORDEN (S. I. Police), Respondent

 S. C. 292-M. C. Colombo, 8,474/B

Penal Code-Sections 341 and 345-Using criminal force-Defining section, formulates two definitions-" Without that person's consent "-Burden of proof-" Outraging the modesty of a woman "-No such offence-Sexual offence-Corroboration of alleged victim's evidence necessary-Evidence Ordinance, s. 153.

Where the accused was charged and convicted, under section 345 of the Penal Code, of using criminal force on a girl " with intent to outrage her modesty "-

Held, that section 341 of the Penal Code formulated two definitions of the offence of using criminal force. Under the first definition the burden of proof was on the prosecution to establish that what was done was done " without the consent " of the woman. Under the second definition no such burden rested on the prosecution.

Held farther, (i) that '' outraging the modesty of a woman '' was not an offence and the criminal force alleged to have been used in this case was therefore that contemplated in the second definition.

(ii) that in sexual offences the evidence of the alleged victim should be corroborated by independent evidence, either oral or circumstantial.

(iii) that where a witness has been asked a question solely relating to his credit and has denied it, he cannot thereafter be contradicted-s. 153 of the Evidence. Ordinance.

APPEAL from a judgment of the Magistrate's Court, Colombo.

Siri Perera, for accused appellant.

S. S. Wijesinha, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

June 14, 1950. DIAS S.P.J.-

This is an appeal from a conviction under section 345 of the Penal Code. The appellant was sentenced to undergo six months' rigorous imprisonment for using criminal force on a girl named Podina with intent to outrage her modesty on October 31, 1949.

Counsel has taken several points. It is submitted in the first place, that the Magistrate wrongly put on him the burden of proving that the girl consented to his advances. It is submitted that, like in the case of rape, the burden of proving that what was done was done without the consent of the woman, rests on the prosecution-see R. v. Balakiriya [1 (1945) 46 N.L.R. 83.]. In the second place it is urged that the Magistrate erred in rejecting the book D2 tendered in evidence by the defence. Finally, it is contended that there is no corroboration of the story told by the woman.

Dealing with the first point-What is " Criminal Force "? section 341 of the Penal Code formulates two definitions of the offence-

(1) Whoever intentionally uses " force " to any person without that person's consent, in order to the committing of any offence-is said " to use criminal force to that person "; and

(2) Whoever intending illegally by the use of "force" to cause, or knowing it likely that by the use of such " force " he will illegally cause injury, fear, or annoyance to the person to whom such " force " is used-is said " to use criminal force to that person ".

On which of these two definitions is the present charge based? If the former, then, the burden of proof undoubtedly would be on the prosecution to establish that what was done was done " without the consent " of the woman. If the latter, no such burden would rest on the prosecution. In the latter event the plea that the woman consented would be an exculpatory plea under Chapter IV of the Penal Code containing the general exceptions to criminal liability. The burden of proof in regard to such a plea would rest on the defence.

There is no offence known to our law called " Outraging the modesty of a woman ". " Modesty " means the feminine sense of propriety and decorum. Therefore, "to outrage the modesty " of a woman means " to insult, affront, or abuse the feminine sense of what is proper and decent ". Where a man uses " force " with the intention of insulting

or affronting the sense of