State v RK - Summing Up [2012] FJHC 1168; HAC074.2011 (6 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 074 of 2011

BETWEEN:

STATE
Prosecution

AND:

RAHUL RAVINESH KUMAR
The Accused

Dates of Trial : 04-05 June 2012
Date of Summing-Up : 06 June 2012

Mr Filimone Lacanivalu for the State
Mr H A Shah with Mr M Degei for the Accused

Name of the victim is suppressed. She will be referred to as RS.

SUMMING UP

Ladies and Gentleman Assessor

1. We have now reached the final phase of this case. The law requires of me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
   
2. In my summing-up to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
   
3. Inasmuch as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence. Your opinions could be unanimous or divided; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is noble and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.
   
5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your being selected to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, and understanding their language which ultimately could be utilized to decide the case before you.
   
6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected. They are matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
   
7. Counsel for the State and counsel for the accused have made submissions to you as to how you should find the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you to accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.
   
8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.
   
9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an alleged incident of rape of a child. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy which human-beings are blessed with. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may sometimes have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and/or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
   
10. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
    
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
    
12. In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof on the accused-person to prove that he is innocent. You will recall that the accused-person is presumed to have been innocent. Therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.
    
13. Inasmuch as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in this criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt.
    
14. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test in a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.
    
15. Please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
    
16. Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
    
17. Let us now look at the charge of rape on the information, which was read over to the accused-person, upon which this trial proceeded.
    
18. The charge is under Section 207 (2) (a) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:
    

'RAHUL RAVINESH KUMAR on 20 February 2011 at Cuvu, Sigatoka in the Western Division had carnal knowledge on RS aged seven years.'

19. (i) I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) states as follows:
    

(2) 'A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without the other person's consent.; or,

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c ) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent

(ii) Carnal knowledge is to have sexual intercourse by penetration the vagina of a woman with the penis of a man to any extent.

(iii) If a person penetrates the vagina to any extent with a penis of that person, without the consent of the woman, that is rape under Section 207 (2) (a).

This is what we are concerned with in this case according to the charge.

(iv) Consent, as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under the age of 13 years is considered under Section 207 (3) of the Crimes Decree as a person without necessary mental capacity to give consent.The girl in this case was admittedly 7 ½ years, therefore, she did not have the capacity under the law to consent. So, the prosecution does not have to prove the absence of consent on the part of the girl because the law says that she, in any event, cannot consent. Therefore, with or without the consent, if the accused is found to have penetrated the vagina of the girl with penis to some extent, then the offence is made out.

20. Therefore, each and every element of the offence needs be proved beyond reasonable doubt by the prosecution. They are that the accused penetrated the vagina of RS to some extent with his penis, which means that the insertion of the penis fully into the vagina is not necessary.
    
21. Consent is not necessary to be proved because the age of the girl was not contested by the accused; and, it, in any event, was also established through the evidence that the alleged victim-girl, having born on 01 September 2003, was only little 7 1/2 years of age at the time of the alleged offence on her.
    
22. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person and connect him to the offence that he is alleged to have committed.
    
23. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the alleged victim was a witness who offered direct evidence, if you believe her as to what she saw, heard and felt.
    
24. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, some statements were produced with the consent of the parties. You can act on such evidence. You can take into account the contents of the documents if you believe that such recordings were made at the relevant time.
    
25. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to give opinions. They are allowed to give evidence on what they have seen, heard or felt by their physical senses only, as I described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid court and you to decide the issue/s before court on the basis of their learning, skill and experience.
    
26. The doctor in this case, for example, came before court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us her conclusion or opinion based on her examination of the victim. That evidence is not to be accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of evidence in the case.
    
27. In assessing evidence of witnesses both of the prosecution and the defence, you need to consider a series of tests. They are for examples:
    
    • Test of Means of Opportunity: That is whether the witness had the opportunity to see, hear or feel what he/she is talking of in her evidence. Or whether the witness is talking of something out of place mechanically created just to make out a case against the other party. Also, whether the accused did have an opportunity to commit the alleged offence as stated by the victim.
      
    • Probability or Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.
      
    • Consistency: That is whether a witness has been saying the story on the same lines without variations and/or differences. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told court contradicts with his/her earlier version. You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another for example by a police officer in recording the statement where the witness is alleged to have given that version.
      
      • ➢ You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.
        
      • ➢ You must also consider the issue of omission to mention something that was adverted to in evidence on a previous occasion on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both.
        
      • ➢ In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.
        
      • ➢ Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.
        
    • Belatedness: That is whether there is a delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication.
      
    • In this case there is a delay in coming the alleged incident to light by about three weeks. This resulted in a delay in reporting the alleged incident to police. In dealing with the delay, you must consider the tender age of the alleged victim, her inability to understand the gravity of the incident and whether the matter was reported promptly soon after an adult got to know about the alleged incident.
      
    • Spontaneity: This is another factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that she is talking of, whether she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion. It is also open to consider whether natural spontaneous reaction was absent due to the age and the social background of the alleged victim.
      
    • In dealing with this too, you must not forget different human beings act differently. When it comes to children, too, all of them would not act in the same manner. They have their own styles in responding to situations and all of them could not be expected to act alike. In this case, you may consider the possible lack of care as her natural mother was not with RS.
      
    • All these are for you to consider as reasonable men and women in the society in assessing the evidence of witnesses.
      
    • Motive: That is whether there was some animosity or enmity or some other reason for a complaint to be made against the accused person and falsely implicate him.
      
28. You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.
    
29. I will now deal with the evidence in this case in brief.
    
    • RS, eight years, giving evidence said that she was residing in Sigatoka before she moved to Suva where she is now living. Rahul, the accused, was her neighbor who helped her family to shift things when they moved places from Lautoka to Sigatoka. Her sister, Palvi, travelled with her in the rear of the truck when they were shifting to Lautoka and Rahul was sitting in the middle.
      
    • After they arrived in Sigatoka, she had a bath and was with the towel wrapped around her when the accused pulled it out and pulled her into a room in the house. Their parents were away buying some groceries. After pulling her inside the room, the accused started licking her body. When her sister came in, he chased her out. The accused then took out his 'thing' and put inside her 'thing'. The accused then took it out again, spat on it put it inside again. The 'thing' she referred to was called 'chunni' meaning the penis and her 'thing' was 'chuttar' meaning the female genitalia in the front. She said it was very, very painful. After doing that, the accused sent her to have a shower. When the parents returned they asked why she was having a shower so long.
      
      • ➢ I will pose for a while here and invite you to consider this item of evidence in light of witness-Nitya's evidence that he too surprised to see RS in a towel even after two hours as he returned home after shopping on 20 February 2011. This evidence may be utilized to decide on the credibility of the evidence of RS and Nitya; and, also on acceptability of the evidence of RS on what happened to her during her parents' absence.
        
    • She told an aunt called Pinky Maussey who was a neighbor at Sigatoka. There was another boy Shavnil to whom she related the incident who in turn related the story to her father-Nitya.
      
    • Answering cross-examination she said she could not remember the date and time of their shifting and admitted that her father and mother went out to buy some groceries at the time of the incident. Answering the suggestion by the defence that the accused did not put his 'thing' to her 'thing', she said that it [the suggestion] was a lie. Answering further she said she was very scared of her parents to have told the story fearing that they would spank on her. She also did not complain to any other person including schoolteachers before as she was very scared.
      
    • Her father took her to the doctor and she explained everything and denied that she had told the doctor that Rahul, the accused, had only touched her. Answering a question whether she remembered what she had told the doctor she said that Rahul put his 'thing' into her 'thing' and his repeated act was very painful.
      
    • The witness identified the accused as Rahul who did the act on her.
      
    • Dr. Sherne Prasad in her evidence said that she examined the victim-child on 15 March 2011 whom she described as a talkative and alert child. Medical examination was conducted from 6.30 pm – 6.50 pm on the victim. She had found a healed abrasion on the right thigh. The perineum was found to be swollen and had a foul smelling. Hymen, she said, was the membrane covering the vaginal opening. When it is ruptured, it is said, that the hymen is lost. The doctor observed loss of hymen on RS but its positions of tear were not noted in her records. She said any form of penetration could be the cause for loss of hymen.
      
    • Answering cross-examination she said that anybody did not tell her about a penal rape of the victim and that the history given by RS was only somebody touching her and that she herself did not get the history from her. Referring to the medical report she said that there was no reference to rape. She further said that hymen could be lost due to vigorous physical activities and self-inflicted activities for pleasure and also due to congenital reasons. She said that there was no evidence of recent sexual penetration.
      
    • Shavnil Vikash Chand giving evidence said that he was living in Cuvu, Sigatoka where the victim and her family, too, lived. On 14 March 2011, RS told him that Rahul pulled her dress and fondled with her breasts, touched her body, kissed and put his 'thing' in her 'thing'. He then told the story to her father-Nitya that very afternoon.
      
    • Answering cross-examination, he said that the story was related to him in March 2011. When referred to the statement made to Police on 15 March 2011, he said that he told Police what RS had told him on 15 March 2011 and that he could not make a false statement. On 28 June 2011, the Police recorded a further statement. And that he was not aware what was in the statement that he made to the Police.
      
    • Nitya Nand, father of RS, said that the victim was her elder daughter who was born on 01 September 2003. On 19 February 2011, he shifted from Lautoka to Cuvu in Sigatoka. His wife, the two children RS, Palvi and Rahul, accompanied him to Sigatoka. Rahul, the accused, was a neighbor who became a friend after sometime.
      
    • On 20 February 2011, he went out with his wife on shopping around 2.00 p.m. Rahul wanted to remain at home. The victim and her sister were left behind for Rahul to look after.
      
    • The witness told the victim to have a bath and to be ready to go out in the evening. On his return after about two hours, he saw the victim RS was still in a towel. He told her to go in and finish her bath. Although Palvi had said that Rahul had chased her out, he, however, did not think that such an incident could ever have happened. He did not get any story about the incident until 15 March 2011 until Shavnil revealed the story privately having got to know from the victim herself.
      
    • The victim was confronted about the incident. She was frightened and scared. Immediately thereafter, he took RS to a doctor in Sigatoka and got her examined. Thereafter, the matter was reported to Police and she was taken for medical examination.
      
    • Answering cross-examination, witness denied having gone for shopping on Saturday 19 February 2011 and that he did not go for lunch at Parvati, the landlady's place. He said that he went for Bula Namaste around 6.00 pm on 20 February 2011.
      
30. The prosecution closed its case with the evidence of above witnesses and presented documents marked as PE-1 and PE 2.
    
31. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that he can exercise options available under law. The accused decided to give evidence on oath. You must consider the evidence of the accused too in the way you consider the prosecution evidence.
    
    • The accused Rahul Ravinesh Kumar, 19 years, in his evidence said that he helped Nitya Nand to take the belongings to Sigatoka from Lautoka and left around 11.00 am on Saturday. After they arrived in Sigatoka, the children were with the landlady, namely Parvati, who was identified in Court. The landlady gave some food to the children.
      
    • Nitya and his wife went to town after leaving the children with the landlady and they returned around 4.00 pm. In the evening they had grog till about 2.00 am.
      
    • In the following morning Nitya and the wife had some arguments as Nitya's wife did not like the place. Then all of them went around looking for another house on rent. They returned around 2.00 pm and looked for some pizza from a shop which was about ½ km away in the town. In the evening on Sunday they went to Bula Namaste Radio Station around 4.00 p.m. Thereafter, they started drinking grog.
      
    • He denied having carnal knowledge with RS on 20 February 2011. He also denied having been alone with RS at any time on 20 February 2011 or touching her.
      
    • Answering cross-examination the accused said that he had studied up to Form 3 and could read and understand English a little. He admitted having come with Nitya and family from Lautoka to Sigatoka and stayed two nights with them. He said that Nitya and wife went on shopping on 19 February 2011. When confronted with the statement that he made to Police that it was on 20 February 2011, the accused said that the Police did not let him see the papers and therefore did not know what they were doing. Referring to the statement to police that the two girls were with him when Nitya and wife went on shopping on 20 February 2011, the accused said that, that was not true. He denied uttering falsehood in Court. When it was put to the accused that he did commit rape on the victim on 20 February 2011, he denied.
      
    • Parvati Nair 76 years of age said that Nitya and the family came to a house of hers on rent on 19 February 2011 and she gave the two girls lunch. She said that Nitya wanted to tell her that it was on a Sunday that they went on shopping. Answering cross-examination the witness said that a lady Police Officer recorded her statement and she was not sure of the date but it was a Saturday.
      
32. The accused closed his case with document marked DE-1.
    
33. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.
    
34. The prosecution relies on two kinds of evidence. Firstly on direct evidence as spoken to by the victim RS and the narrative evidence of other witnesses on what was related to them by RS and how the incident was reported to police.
    
35. Secondly, there is also evidence based on circumstances. That is that RS was seen in a towel as she was left behind by Nitya around 2.00 p.m. on 20 February 2011; and, even after two hours from that point when the parents returned after shopping, she was still in towel. You may consider these circumstances to decide on prosecution case if you believe the evidence of the two witnesses on the point beyond reasonable doubt. Please note that these circumstances shall not make an irresistible inference against the accused to establish his guilt of the charge. It may only serve to establish credibility of RS and Nitya.
    
36. Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case. Corroboration is to have some independent evidence to support the victim's story of rape. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence.
    
37. In dealing with the issue of penetration, medical evidence may be helpful. You may consider the issue of penetration in light of the doctor's findings that she saw the loss of hymen of RS even though there was no evidence of recent sexual intercourse. It is entirely a matter for you to be satisfied that the loss of hymen was caused as a result of the penetration by the accused as alleged by RS and not due to any other reason. Please remember medical evidence is not essential and/or indispensable for you to come to the finding that the penetration, in fact, took place. If you believe the evidence of RS on that point beyond reasonable doubt and disbelieve the accused that would suffice for you to come to that finding.
    
38. The absence of signs of recent penetration was of course due to the delay in examining RS after the complaint on 15 March 2011; and, you need to take that aspect too into consideration. If you believe that the loss of hymen was due to the alleged act of the accused, then you must be satisfied beyond doubt that RS did not submit herself into any such activity that could lose her hymen between 20 February- 15 March 2011
    
39. The accused denied the allegation. He said that RS was with Parwathi, the landlady, and that he did not have access to have carnal knowledge on RS.
    
40. In deciding on the evidence of Parwati, you may consider whether a lady of her age could remember minute details such as date of Nitya's coming into her house on rent. You may also consider whether she was an interested witness.
    
41. If the position of the accused is accepted that he did not do anything to RS, then the prosecution case fails. Then you must find the accused 'Not Guilty'.
    
42. Or, if you neither believe nor disbelieve the accused's position, it then creates a reasonable doubt in prosecution case. There again, the prosecution case fails and the accused should be found 'Not Guilty' of the charge.
    
43. Please remember, even if you reject the position of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has on its own established its case beyond reasonable doubt that the accused did penetrate RS with his penis as stated by her for the prosecution to succeed in the charge of rape.
    
44. So you must consider the evidence of witness RS very closely in relation to the issues and must be satisfied beyond a reasonable doubt after considering the position of the accused too in order to come to a conclusion on the charge.
    
45. You may also consider whether it was possible for the accused to deny the act only to save him of the charge and made-out a story of mere denial in that direction. You may also consider whether the victim and the prosecution witnesses were shown to be people of such caliber who would fabricate a case against the accused at the expense of a little girl like RS without any reason or motive to implicate. And, whether such a thing was, however, possible considering the cordial atmosphere they have had.
    
46. If you believe that the charge of rape, after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty of the charge. You must remember that you can find the accused guilty of the offence, if and only if, you reject the defence evidence and accept prosecution evidence on each element of the offence beyond reasonable doubt.
    
47. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society would do.
    
48. Ladies Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.
    

I thank you for your patient hearing to my summing-up.

Priyantha Nāwāna

Judge

High Court

Lautoka

06 June 2012