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Court of Appeal dismisses appeal of youth convicted of abduction, rape

by Wasantha Ramanayake

The Court of Appeal dismissed an appeal by a youth who was found guilty of abduction and rape of a minor and the Court directed the Prison Authorities that the sentence should take effect from the date of conviction.

The Bench comprised Justices Chandradasa Nanayakkara and Jagath Balapatabendi. Delivering the unanimous judgment, Justice Jagath Balapatabendi observed that the accused-appellant M. Suresh was convicted and sentenced on two charges i.e., abduction of a minor from her lawful guardian and committing rape on her on November 6, 1998. He was sentenced to one year's RI and ten years RI for the first and second counts respectively.

In terms of the judgement, the counsel for the accused-appellant did not canvass the conviction but contended that the Trial Judge had erred in law as well as on facts by failing to exercise the discretion given by the proviso to the section 364(2) of the Penal Code.

According to the judgment, in terms of the proviso the court had the discretion to impose a sentence of less than ten years imprisonment where the offence was committed in respect of a person under 16 years of age and where the offender was under 18 years of age and the intercourse had been with the consent of the person.

The counsel submitted that there was no evidence to establish the exact age or the date of birth of the accused-appellant.

The statement made by the accused on November 9, 1998, gave an indication that he was 18 years old on that date and therefore it could be inferred that on the date of the commission of the offence he was three days younger than 18 years. The counsel further submitted that the law did not require the accused to establish the age at the time of the commission of the offence but the Court of Appeal could take cognizance of the statement made by the accused-appellant in order to establish his age at the time of the commission of the offence.

Justice Balapatabendi observed that the Senior State Counsel (SSC) contended that the age of the accused was a matter exclusively within his knowledge and the burden was upon him to place the facts before the court.

He contended that the accused at that stage could establish his age by producing the birth certificate. The SSC argued that in terms of Section 105 of the Evidence Ordinance burden of proving the age of the accused and bringing the case within the said proviso under Section 364(2) of the Penal Code, was upon the accused.

Justice Balapatabendi observed that when a person was accused of any offence the burden of proving the existence of circumstances bringing the case within any proviso contained in the section was upon him, and the court shall presume the absence of such circumstances. The Judgement further stated that in case an application had been made to the court to exercise its powers under the particular section the court would have considered and permitted the accused-appellant in the interest of justice to place some evidence in regard to the age."The counsel for the accused-appellant only requested to consider and take cognizance of the age mentioned by the accused-appellant in his statement to the Police wherein he had stated that he was 18 years old on that date."

Justice Balapatabendi expressed his view that it was irregular and not in accordance with the law, at that stage to refer to the statement made by the accused-appellant to the Police and to gather fresh evidence to establish the age.

"Even if this court takes cognizance of the age mentioned by the accused in his statement to the Police it will not help this court in any manner to determine the accused-appellant was a person under 18 years of age at the time of the commission of the offence."

Accordingly, the Court dismissed the appeal since the grounds urged by the counsel for the accused-appellant had no merit and untenable.

Dr. Ranjit Fernando with Sandamali Munasinghe appeared for the accused-appellant. SSC P. P. Surasena appeared for the Attorney-General.

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