Nandan v State [2000] FJHC 194; HAA038J.2000B (4 October 2000)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0038J.2000B

Between:

HARI NANDAN
Appellant

And

THE STATE
Respondent

Appellant in Person
J. Rabuka for the Respondent

Date of Hearing: 25 August 2000
Date of Decision: 4 October 2000

JUDGMENT

Hari Nandan the appellant appeals against his conviction and sentence of five years imprisonment by the learned Magistrate at Labasa for the offence of rape contrary to sections 149 and 150 of the Penal Code Cap.17. On 23 October 1999 the appellant had unlawful carnal knowledge of Dileshni Devi without her consent at Vuniuto Nasarowaqa Bua.

The grounds of appeal in as much as the court can understand them are as follows:

1. That the findings of the learned Magistrate during the course of the trial ought to be set aside as the grounds of being unsafe and unsatisfactory;
   
2. That exaggerated statements were made to the medical officer accusing irregularities to the reports, exaggerating the seriousness of the offence and effecting the outcome of the trial;
   
3. That there was no evidence of offence given in the trial save for the complainant’s word against the appellant;
   
4. That the evidence relied on by the prosecution raises doubt about the conviction in relation to the elements of the offence of rape.
   

In Ilaitia Korociri v R Criminal Appeal No. 43 of 1979 their Lordships of the Court of Appeal discussed rape in the following terms:

“.... in the definition of rape as quoted above no intent is stated but a long line of cases has settled the law that not only must the fact of intercourse without consent be proved but it must be proved that the accused intended to commit the crime. The recognised mental element has been stated to be that the accused had actual knowledge of the fact that the woman was not consenting or was determined to have intercourse with her whether she was consenting or not. The intent of the accused and the act (namely that the woman was not in fact consenting) must both concur to constitute the crime.”

The appellant elected to given sworn evidence in which he stated that he did not commit the offence of rape on the complainant. However in his record of interview as translated into English at page 61 of the court record questions 23 to 33 are in the following terms:

Q.23 - Then what you did?

A - Dileshni was sitting on a stone and I was also sitting on another stone and having kavika.

Q 24 - Then what happened?

A - I then got hold of Dileshni Devi.

Interview is suspended and served the suspect with dinner of dhal and rice

sgd Hari Nandan Witt PC 2572 Satish Chand

22.30 hrs Commenced interview of the suspect and warned him that he is still under caution.

Q 25 - What place of Dileshni you got hold of?

A - I got hold of the legs.

Q 26 - Then what you did to Dileshni?

A - When Dileshni tried to escape then I got hold of her mouth and pressed hard.

Q 27 - Then what you did?

A - I then put Dileshni on the ground.

Q 28 - When what happened?

A - I told Dileshni not to make any noise, if she will make any noise then I told her I will kill her.

Q 29 - Then what happened?

A - Dileshni kept quite and I then put her trousers off (undressed her)

Q 30 - How did you put off Dileshni’s trousers?

A - I got hold of Dileshni’s hand and then I pulled her trousers off.

Q 31- Then what happened?

A - Then I opened the zip of my trousers and took out my penis, and Dileshni tried to escape again so I got hold of her hand and separated her legs and put my erected penis into her vagina.

Q 32 - Then what you did?

A - As my penis went inside Dileshni’s vagina, Dileshni shouted loudly then I pressed her mouth again and I warned her again if she will shout I will kill her.

Q 33 - Then what you did next?

A - I then had sex for about 2 minutes, I then left her.”

The appellant admitted in cross-examination that his answers had been given voluntarily. In her evidence which appears at pages 21 and 22 of the court record, the complainant testified as follows:

“A minute later he ran towards me and held me by his hands. From back he held my legs. Then he put me on the ground. I faced upwards. I screamed. He pressed my neck with his hand. He came on top of me and said that I am his wife. I cried and tried to free myself. He undressed me i.e. took off my trousers and red dress.

I was not wearing any panty.

Yellow pants- exhibit 2.

Red Top- exhibit 3.

I struggled as he pushed me to the ground.

He then opened buttons of his trousers and lay on top of me and I saw his erect penis.

I put my legs together to avoid penetration.

He threatened to hit me if I did not allow him to have sex, he then forcefully separated my legs and penetrated my vagina.

I shouted and screamed in pain. I could do nothing but screamed. He had sex 2 to 3 minutes. Then he left me and ran into the bush.”

The court has no hesitation in accepting learned state counsel’s submission that the appellant’s interview confirmed the complainant’s evidence given under oath. From both her testimony and the appellant’s responses it is clear “the accused had actual knowledge of the fact the woman was not consenting and was determined to have sex with her whether she was consenting or not. The intent of the accused and the act (namely that he sworn was not in fact consenting) must concur to constitute the crime.” The appellant threw the complainant on the ground, forced her legs apart despite her attempts to cross them threatened her and then with his penis penetrated her vagina without her consent.

In the light of the clear and unequivocal evidence, the court is of opinion that there is no merit in any of the appellants grounds of appeal but the court will deal with each for completeness. As to the first ground of appeal, the complainant’s mother stated the appellant took off her daughter’s pants although the former said she wore no panties. Nothing turns on this as the offence of rape in all material respects has been proved beyond reasonable doubt. As to the second ground, the medical report merely reflected the doctor’s findings which confirmed bleeding, recent rupturing of the hymen and bruises of the vaginal lips. It reinforced the complainant’s allegations of rape. In relation to the third ground of appeal, the learned Magistrate believed the complainant and having done so warned himself against the danger of convicting on the basis of uncorroborated evidence. Having done so he nevertheless chose to believe the complainant. The fourth ground of appeal has already been dealt with in the course of this hearing.

The appeal against conviction and sentence is accordingly dismissed.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
4 October 2000