Court held violence must occur during sodomy, acquitting accused but adding new counts for sodomy without violence.

[*263] 1976 July 8

(PIKIS, AG.P.D.C., ARTEMIS & CONSTANTINIDES, D.JJ.)

IN THE ASSIZE COURT OP LARNACA

Republic,

v.

Georghios Kyriacou Katsiou and Another,

Accused.

(Criminal Case No. 4198/76).

Criminal Law - Unnatural offence with violence - Section 172 of the Criminal, Code, Cap.

154 - Ingredients of the offence - Use of violence whilst acts of sodomy in progress an essential ingredient.

Criminal Procedure - Charge or information - Amendment by adding new counts - Principles applicable.

Gl. Michaelides, for the Prosecution. A. Mathicolonis, for Accused 1.

G. Nicolaou, for Accused 2.

DECISION

The

decision of the Court was delivered by:-

PIKIS, AG. P.D.C. : Two charges have been preferred against accused 1 for sodomy with violence and a similar charge against accused 2. It is the case for the prosecution that in the early hours of 25th April 1976, the two accused, acting in concert, punched the complainant and subsequently threatened him in order to make him yield to their desires of having carnal knowledge of him contrary to the laws of nature. And that in consequence of the violence used and the threats made, the complainant, Stavros Hisichiou, succumbed to their desires [*264] and allowed the accused to have carnal knowledge of him contrary to the laws of nature. It has not been seriously alleged that violence had. been used by either accused while the accused had allegedly carnal knowledge of the complainant. We invited arguments from counsel on the interpretation that should he accorded to section 172, the relevant provision that makes it an offence to have carnal knowledge of someone contrary to the laws of nature, with violence. In particular, we sought arguments from counsel as to the stage at which violence must be manifested in order to satisfy the element of violence envisaged by the law.

Learned counsel for the accused argued that acts of violence must take place while acts of sodomy are in progress. Counsel for the prosecution submitted that what the law prohibits is the use of violence either at the time when acts of sodomy take place or before it, especially if recourse is had to violence in order to overcome the resistance of the person of whom carnal knowledge is subsequently had. Reference has been made to the definition accorded to violence by a New Zealand court where a wide enough interpretation was given to the word to encompass threats as well.

It is a novel point, to our comprehension, not covered by any decision of the Supreme Court nor by any English decision for that matter. There is no corresponding provision in the English Law and our original suspicion that perhaps there exists a corresponding provision in the Indian Penal Code proved groundless. In Nelson's book on the Indian Penal Code, 6th edition, volume 2, at pages 2051-2055 there is [*265] a discussion of Unnatural Offences under the Indian Penal Code. It transpires, on a study of these pages, that the offence of sodomy with violence is unknown to the Indian Penal Code. (See also Penal Law of India , volume 3, 9th edition, by Sir Hari Singh Court at pages 2957 et seg.).

It is a fundamental principle of statutory interpretation that a penal enactment must be interpreted restrictively. At times it has been said that a penal statute must be interpreted in a way most beneficial to the accused, in case of doubt. We are of the view, however, that in the case of section 172 the meaning of the words used by the legislature is sufficiently clear and leave no room for ambiguity. It is envisaged therein that the aggravated unnatural offence created by section 172 is committed when carnal knowledge is had contrary to the laws of nature with violence. In the Concise Oxford Dictionary it is stated that the preposition "with" has thirteen different meanings. The only relevant meaning in the context of section 172 is the second meaning given, which is "in or into company of or relation to, among, beside". In our view the meaning that should be attributed to the word "with" in the context of section 172 is "accompanied by", an interpretation strengthened on a consideration of the provisions of section 173 of the Criminal Code, making provision for the punishment of attempts to commit different types of sodomy. According to the Concise Oxford Dictionary in its ordinary use the word "accompany" connotes co-existence. The mischief against which section 172 is directed is a particular type of lewd [*266] conduct probably because such conduct exposes the physical integrity of a human being to increased dangers and adds to the humiliation of mankind. It is aimed at a particular kind of pervert conduct that tends to degrade human beings. It is not the

intention of the legislature to punish violence where recourse is had to it for the purpose of overcoming possible resistance prior to the acts

of sodomy inasmuch as consent to carnal knowledge contrary to the laws of nature is irrelevant to the commission of the offence. In our judgment the offence envisaged by section 172 of the Criminal Law has as a vital ingredient the use of violence while acts of sodomy are in progress. The evidence before us does not support the presence of violence while the accused were allegedly having carnal knowledge of the complainant and in consequence the accused are acquitted and discharged on the counts preferred against them. However given that sodomy is an ingredient of the offence with which the accused had been charged and having in mind the principles upon which the Court may amend the information by adding new counts as enunciated by the Supreme Court in numerous cases referred to in Criminal Procedure by Loizou and Pikis at page 71 et seq. and in particular the fact that it is possible to have recourse to the provisions of the Criminal Procedure Law for the amendment of the information at the close of the case for the prosecution, feeling certain that no prejudice is likely to result to the accused by the course about to be followed, we direct that the following two counts be added on the Information:- [*267]

STATEMENT OF OFFENCE

4th Count

Carnal knowledge of a person against the order of nature contrary to section 171(a) of the Criminal Code.

PARTICULARS OF OFFENCE

Accused 1, on 25th April 1976, at Larnaca, by Prodromos church, in the District of Larnaca, did have carnal knowledge of another person, to wit, Stavros Hisichiou, of Larnaca, against the order of nature.

STATEMENT OF OFFENCE

5th Count

Carnal knowledge of a person against the order of nature contrary to section 171(a) of the Criminal Code.

PARTICULARS OF OFFENCE

Accused 2, on 25th April 1976, at Larnaca, by Prodromos church, in the District of Larnaca, did have carnal knowledge of another person, to wit, Stavros Hisichiou, of Larnaca, against the order of nature.

Accused discharged and

acquitted. New counts added.