State v Kumar [2015] FJHC 190; HAC030.2012 (17 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 030 of 2012

STATE

v.

1. NITESHNI KUMAR
2. RAVINESH SINGH

Counsel: Mr. Nath S and Ms. Chowdhury M for State
Mr. Kumar S for Defence

Dates of Hearing: 9th, 10th, 11th and 12th, March 2015
Date of Summing Up: 16th March 2015

Date of Judgment: 17th March 2015

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as S.S.]

1. The two accused persons were charged with the following offences:
   

First Count

Statement of Offence

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

Particulars of Offence

RAVINESH SINGH on the 7th day of December 2011, at Nausori in the Eastern Division, had carnal knowledge of S.S., a girl under the age of 13 years.

Second Count

Statement of Offence

AIDING AND ABETTING RAPE: Contrary to Section 45 (1) and 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NITESHNI KUMAR on the 7th day of December 2011, at Nausori in the Eastern Division, aided and abetted RAVINESH SINGH to have carnal knowledge of S.S., a girl under the age of 13 years.

2. After trial, the assessors unanimously opined that the 1st accused is guilty on Count No. 2 and that the 2nd accused is guilty on Count No. 1 as charged. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. The complainant S.S. testified in court as to how she was raped by the 2nd accused. On the same day S.S. has informed this to her mother and with the mother she has reported to police. S.S. was 12 years old at the time of the incident. The doctor who examined S.S., submitting the medical report said that she observed a vaginal tear and that vaginal penetration has caused it. Both the accused persons giving evidence denied the charges.
   
4. I find that the evidence of the complainant was truthful and that the assessor's unanimous opinion that the 2nd accused is guilty on count No.1 was supported by the evidence adduced at the trial.
   
5. It was evident that the 1st accused came to the complainant's house and took the complainant S.S. to her stall. Then the 1st accused had called the 2nd accused saying 'come she is here'. Then the 2nd accused had come, taken the child to the nearby bush and raped her.
   
6. The evidence also revealed that when the child was raped by the 2nd accused in the bush, the 1st accused was at the stall which was close to the bush. When S.S. screamed, the 1st accused had come and told her not to shout. When S.S. started bleeding the 1st accused had taken S.S. to her house and got her to bathe. 2nd accused also has concealed the incident from S.S.'s mother saying that S.S. has got menses. 2nd accused also had threatened S.S. not to tell this to anyone. I find that the evidence of S.S. is consistent and truthful. Her actions taken together suggest that 1st accused intentionally assisted the 2nd accused to rape S.S. I also find that the 1st and 2 accused persons were not truthful in their evidence.
   
7. I find that the prosecution has proved both counts 1 and 2 beyond reasonable doubt and that the assessors unanimous opinion was not perverse when they opined that the 1st and the 2nd accused persons guilty of counts 2 and 1 respectively.
   
8. Therefore I concur with the assessors unanimous opinion that the 1st accused is guilty of Count No. 2 and that the 2nd accused is guilty of Count No. 1.
   
9. Accordingly I convict the 1st accused of Count No. 2 and convict the 2nd accused of Count No. 1.
   

Priyantha Fernando
Judge
At Suva
Office of the Director of Public Prosecutions for State
Office of Sunil Kumar Esq. for both Accused