State v Dass - Judgment [2014] FJHC 139; HAC222.2011 (28 February 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 222 OF 2011

STATE

v

KALI DASS

Counsels : Mr. F. Lacanivalu for the State
Mr. Roneel Kumar for the accused

Date of Trial : 20 February 2014 to 26 February 2014
Date of Summing Up : 26 February 2014
Date of Judgment : 27 February 2014 (Pronounced on 28 February 2014)
(Name of the victim is suppressed. She is referred to as DY)

JUDGMENT

1. The trial held for the last five days. After deliberations for about one and half hours, the three assessors came out with a mixed verdict. First assessor found the accused guilty of all three counts. The second assessor found the accused Not Guilty of all three counts. The third assessor found the accused Guilty for the 1st count and Not Guilty for the 2nd and 3rd counts.
   
2. There are three counts of Rape against the accused. The accused is the biological father of the complainant. The information against the accused is as follows:
   

Count 1

Statement of Offence

RAPE: Contrary to Sections 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KALI DASS, between the 1st day of November 2010 and 31st day of December 2010 at Nadi in the Western Division inserted his penis into the vagina of DY, a 10 year old girl.

Count 2

Statement of Offence

RAPE: Contrary to Sections 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KALI DASS, between the 1st day of June 2011 and 31st day of August 2011 at Nadi in the Western Division inserted his penis into the vagina of DY, a 10 year old girl.

Count 3

Statement of Offence

RAPE: Contrary to Sections 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KALI DASS, between the 1st day of September 2011 and 05th day of September 2011 at Nadi in the Western Division inserted his penis into the vagina of DY, a 10 year old girl.

3. I adjourned overnight to consider my judgment, I direct myself in accordance with the law contained in my summing up to the assessors.
   
4. I bear in mind that whilst the opinion of the assessors carries great weight, the verdict of the court is that of the judge and it is his duty to reach his own conclusion on the evidence. (Joseph v the King [1948] AC 215). In Ram Dulare & others v R [1955] 5 FLR 1 the Court of Appeal referred to Joseph's case and held:
   

'...[the assessor's] duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the [High] Court sitting with the assessors is that of the trial Judge and the trial Judge alone and ...he is not bound to follow the opinion of the assessors.'

5. More recently, in Sakiusa Rokonabete v The State Criminal Appeal No. AAU 0048/05, the Court of Appeal observed:
   

'In Fiji, the assessors are not the sole judges of fact. The Judge is the sole Judge of fact in views of the facts.'

6. If the presiding trial Judge disagrees with the opinion of the assessors, he must give written reasons for differing from the opinion and those reasons must be pronounced in open court (Section 237 (4) of the Criminal Procedure Decree). The reasons for differing with the opinion of the assessors must be founded on the weight of the evidence and must reflect the presiding Judge's view as to the credibility of witnesses. (Ram Bali v Regina (1960) 7 FLR 80 at 83, Ram Bali v The Queen Privy Council Appeal No. 18 of 1961), Shiu Prasad v Regina (1972) 18 FLR 70 at 73. In Setevano v State [1991] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial Judge:
   

'...must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial.'

7. I direct myself in accordance with the law and the evidence contained in my summing up.
   
8. The offence of Rape requires proof of the following elements:
   
   • (a) The accused
   • (b) Inserted his penis into the vagina of the victim.
     
9. It is agreed fact that the complainant was born on 3rd September 2001. Thus she was less than 13 years at the time of each incident of Rape. Thus the consent is not an element of each count.
   
10. The evidence to prove these charges came from the complainant DY and the caution statement and the charge statement of the accused.
    
11. Prosecution called victim DY as a witness. She is ten years old now. She stated that in sugarcane field, her father (accused) took off her clothes and climbed on her. Then he put his penis (nuni) in her vagina (ponu). It was painful. This happened twice. Other incident was at home. She had told this to her aunt after the 2nd incident. She had gone there with her grandmother.
    
12. Under cross examination she admitted that she went with her step mother to Ba sometimes in June 2011. Then she had stayed there for some time. Then she had come to her aunt's place and stayed there for few days. Then she had told this to her aunt. When she made the statement to police, aunt was present there throughout. She was answering the questions put to her by the police officer. When she was taken to hospital, aunt accompanied her. The aunt spoke to the doctor before she was examined. When it was put to her that Kali Dass did not put his penis into her vagina at the sugarcane field, she said he did that. Further, when it was put to her that Kali Dass did not put his penis into her vagina at home, she said he did that.
    
13. I observed the demeanour of this witness when she gave evidence. In my mind there is no doubt that she gave truthful evidence in Court. She was prompt in answering the questions put to her by the prosecution as well as defence. She was not evasive in her answers. She had told her aunt about the incident. In fact it was at the first available opportunity after the last incident of rape. The accused is the father of the complainant and incidents have taken place in day time. Therefore, there is no issue regarding identification. It was not suggested to her that she had a motive to falsely implicate the accused. There were some inconsistencies in her evidence with her aunt Karishma Devi's evidence. However, considering the age of the complainant and her education level, these inconsistencies are insignificant.
    
14. Prosecution called Karishma Devi as a witness. She is the aunt of the complainant. On 5.9.2011, the complainant had come to her house with her grandmother. When complainant was asked what your father did to you, she had said that her father took off her panty. The grandmother was staring at her. Then she had taken the complainant to a room. Then complainant had told her that her father took her to sugar cane field and made her sleep on the ground. Then he had put his penis into her vagina. Lots of blood had come out and she was taken to hospital by the accused. She had told this to her husband and police complaint was made. This had happened twice.
    
15. Under cross examination she admitted that she was present when complainant made her statement to the police. She also admitted that she spoke to police officers before the complainant made the statement. But she said that she was asked to go out when the complainant started giving her statement. She admitted that she was present when doctor examined the complainant. She said she did not talk to the doctor before examination. She denied that complainant stayed at her house. There were no ill feelings between her husband and the accused.
    
16. I observed her giving evidence in Court. She had given prompt answers to questions put to her by the accused. I accept her evidence and it corroborates the evidence of the victim regarding recent complaint about the last incident of rape.
    
17. Prosecution called four police witnesses. First was DC Shailend Sashi Krishna. He is an officer with 14 years experience. On 9.9.2011 he had received instructions to caution interview the accused. DC Arif Khan was the witnessing officer. It was conducted at the Fraud office at the Nadi police station. It was commenced at 9.40 a.m. and concluded at 4.50 p.m. It was conducted in Hindi language in question and answer format. Accused was given his rights. The accused was not assaulted, threatened or forced to admit. No complaint was made by the accused. He had not seen any injury on the accused. The accused was given breaks and time to rest.
    
18. A reconstruction was done during the interview. No assault, threat or force was made by him or any other officer during the reconstruction. There was no inducement, threat or promise during the interview. At the conclusion, content was read back to the accused. Opportunity was given to add, alter or delete. The accused signed the statement. He and witnessing officer counter signed. He identified the original caution interview statement marked PE1 and tendered the same. He also read out and tendered the translation marked PE2. He identified the accused in Court.
    
19. Under cross examination he said that the accused was not beaten up by Arif with the piece of wood during the reconstruction. He further denied officer Arif asking the accused to sit on the ground cross legged and standing on his knees. He admitted that the interview was conducted in Hindi language. He denied threatening the accused with assault if he does not sign the interview. He denied fabricating the admissions in the interview.
    
20. The next witness was DC Vishal Kumar. He is an officer with 10 years experience. He had gone in search of the accused with team of officers on 7.9.2011. When the police vehicle approached, the accused had run away. They had conducted a search. Later in the night he was informed by PC Sanjay that the accused was arrested. PC Sanjay had come in a police vehicle to pick him up. The accused was in the back seat of that vehicle. He had escorted the accused to the police station. There were no visible injuries on the accused.
    
21. He had charged the accused on 10.9.2011 at 0830 hours at the charge room of the Nadi police station. It was concluded at 1050 hours. It was done in question and answer format in Hindi language. The accused was not assaulted or forced before or during the charge. The accused did not make a complaint before or during the charge. The accused was given his rights. There was no inducement, threat or promise. At the conclusion, content was read back to the accused. Opportunity was given to add, alter or delete. He identified the original charge statement marked PE3 and tendered the same. He also read out and tendered the translation marked PE4. He identified the accused in Court.
    
22. When cross examined he denied Sanjay hitting the accused. He further denied that accused was assaulted by group of police officers when he was brought to Nadi police station. He denied accused never made a statement or fabricating a statement.
    
23. The next witness was DC Arif Khan. He is an officer with 16 years experience. He is the witnessing officer of the caution interview of the accused. He corroborated the evidence of DC Shailend Sashi Krishna.
    
24. Under cross examination he admitted that he does not know how to read or write Hindi. However, he could very well understand Hindi language. He denied that DC Shailend threatened the accused during the interview. He denied assaulting the accused with a wooden stick at the time of reconstruction. He further denied asking the accused to sit on the ground cross legged and then standing on the knees of the accused. He denied burning accused's penis with match stick in the police station.
    
25. Last police witness was the investigating officer DC Virisila. She is an officer with 9 years experience. She was instructed to be the investigating officer on 6.9.2011. She had taken steps to collect information and record statements. The incidents of rape had happened once after crushing season in 2010 and twice during the crushing season in 2011. The victim was produced before a doctor at the Nadi hospital on 6.9.2011.
    
26. Under cross examination, she said that she was going in and out of the room where the interview of the accused was conducted. She denied seeing the accused being assaulted or threatened during the interview.
    
27. I have carefully considered the available evidence in respect of the caution interview on 9.9.2011 and the charge statement on 10.9.2011 of the accused.
    
28. Accordingly, I have come to the view that in regard to any allegation of assault, pressure, intimidation and threats by the police, the state had satisfied me beyond reasonable doubt that it did not happen. I reject the evidence of the accused that he was assaulted and forced before, during and after of this caution interview and charge statement. I am satisfied that the interviews were voluntary, that those were obtained in fair circumstances, that those were in no way oppressed or beaten out of the accused in contravention of his rights either under the Judges' Rules or of the Constitution which was not in operation.
    
29. Doctor was called as the last witness for the prosecution. She is a doctor with 5 years experience. She marked and tendered the medical report PE5. She had examined the victim on 6.9.2011 at 7.40 p.m. The victim through interpreter had told that her father had sexual intercourse with her twice on two days. There was 0.5 cm superficial laceration on the vaginal opening. This was a fresh injury with little bleeding. No hymen was visible. The professional opinion was that patient had vaginal penetration recently. For hymen to be missing there has to be repeated penetration into vagina.
    
30. Under cross examination, she said it is not possible for the hymen not be present due to single penetration. According to history, the two incidents were two dates before she came one after the other. She said if a child is taken to hospital with vaginal pain or bleeding she will be examined for rape.
    
31. The doctor is an independent witness. I believed her evidence. There is medical evidence of recent vaginal penetration. Further hymen is absent which is due to repeated penetration into vagina. This evidence is consistent with the complainant's evidence and corroborates the evidence of the complainant.
    
32. After the prosecution case was closed, I explained the accused his rights in defence.
    
33. Now I consider the defence version. The Accused elected to give evidence. He stated that he came to know that police was looking for him on 8.9.2011. He had gone to his brother's house. Brother had called police to surrender him. Police officer Sanjay came, lifted him and threw him to the police vehicle. Two other police officers got into the same vehicle at sea side. One of them was Vishal. He was assaulted by Sanjay on the way to the police station.
    
34. At the police station lot of officers were waiting for him. When he entered the station they started beating him. He was hit on the stomach, sides and up to the head by 8-9 police officers with fist. Vishal was there standing at the back. Then his clothes were taken off. He was hand cuffed and put into the cell naked. There were other four i-Taukei people in the cell. Following morning after breakfast his clothes were given and Shailend had interviewed him at a room close to the Nadi Court house.
    
35. He was informed about the allegation that he raped his daughter. He felt ashamed as he had looked after her without mother. Then he was taken to reconstruction.
    
36. At the reconstruction at his house, he was beaten with a stick by Arif Khan. He was made to sit on the ground cross legged and Arif Khan stood on his knee. He was beaten on shoulders and calf muscle. When he was brought back to the police station, he was made to sign the last paper. Vishal also came to get a paper signed. He can't recall what he told Vishal. Arif came after that and told him to unzip his pants and take out his penis. Then front of his penis was burnt with a lighted match by Arif Khan. He was kept in the cell for five days without clothes. He was taken to Court on Monday.
    
37. When he was taken to Magistrate, he had not complained about assault or injuries. He was threatened by police if he does so, he will be taken back to police station and beat him more. The lady who was living with him had taken the daughter away for two months and that lady is making these allegations. Satya Nand and Karishma were not in talking terms with him.
    
38. In cross examination by the prosecution he was shown the different positions taken up by him in questions and answers 89 & 90 regarding whether he was aware of the allegation earlier and questions and answers 95 & 96 regarding that he evaded the arrest. He said those positions are wrong. It was also put to him that he had taken earlier position that Sanjay assaulted him while driving. He said Sanjay stopped the vehicle to assault him. He denied that he earlier took a position that Arif burnt his testicles. He firstly admitted that Arif burnt his penis after signing last paper. Then he changed his position and said that Arif did this before signing the papers.
    
39. He admitted that he was given lunch during the interview. He admitted that he had taken different positions regarding making a statement to Vishal. He said that he was kept in the cell naked for five days after Arif burnt his penis. He agreed that he was produced in Court on 12th Monday. He admitted that he never made a complaint to the Magistrate regarding police assault. When he was produced before a doctor at St. Giles although he had made a complaint, he was asked to tell that to Court. He admitted that he never made a complaint to High Court Judge when he was produced in High Court.
    
40. In re-examination, he said that he knew that he could make a complaint to High Court Judge. He said that on 9th, 10th and on 11th he was put into cell after taking off clothes. But after going to Court on 12th his clothes were not removed when he was put into the cell.
    
41. I watched the accused giving evidence in court. He took time in answering questions put by the prosecution. Position taken up in Court by him is different from his caution interview statement and the charge statement. Further he had given different versions in evidence given in this Court. In other words his evidence is inconsistent. I could not accept his version and his version is not sufficient to establish a reasonable doubt in the prosecution case. I reject his version.
    
42. The first and third assessors found the accused guilty of the first count of Rape. I also agree with their majority verdict and find the accused guilty of the 1st count and convict him of the 1st count.
    
43. In order to find the accused Guilty of the 1st count two assessors have believed the evidence of the complainant on that count. There is no indication that the assessors either found the caution interview and the charge statement of the accused voluntary or truthful. I had earlier found the caution statement and the charge statement voluntary. I further find those are truthful.
    
44. I have considered both parties' evidence and witnesses, in order to discover the truth. I find the state witnesses credible, and I accept their evidence. I find the accused was not a credible witness, given the above. I reject his denials.
    
45. Considering the evidence before the Court, which I extensively discussed in my summing up to assessors, I am convinced that there is ample evidence against the accused person to prove that he had committed the offences of rape as charged in the 2nd count and 3rd count of the information.
    
46. For the reasons given, I do not accept the majority opinion of Not Guilty given by the assessors in respect of the second count of Rape and the third count of Rape. I come to this decision after considering evidence against each count separately.
    
47. The learned DPP has satisfied me the guilt of the accused beyond reasonable doubt in respect of the 2nd count and 3rd count. Accordingly, I convict the accused for the 2nd count and 3rd count as charged.
    
48. This is the Judgment of the Court.
    

Sudharshana De Silva
JUDGE

At Lautoka
27th February 2014

Solicitors : Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused