State v Khan - Judgment [2015] FJHC 550; HAC70.2012 (22 July 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 70 OF 2012

STATE

V

MOHAMMED SAHMEEL KHAN

Counsels: Mr. A. Singh for the State
Mr. L. Jiuta for the Accused

Dates of Trial: 13th July 2015 - 17th July 2015
Date of Summing up: 20th July 2015
Date of Judgment: 22nd July 2015

(Name of the Complainant /Victim is suppressed. Victim is referred to as SH)

JUDGMENT

1. The Accused was charge with the following Count and was tried before three Assessors.
   

Statement of Offence

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

Particulars of Offence

Mohammed Sahmeel Khan between the 1st day of July 2011 and the 5th day of September, 2011 at Nadi in the Western Division penetrated the vagina of SH, a 12 year old child, with his penis.

2. Assessors unanimously found the Accused not guilty of the Count.
   
3. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.
   
4. The Prosecution case was substantially based upon the evidence of the Complainant, SH and the cautioned interview and charge statements of the Accused.
   
5. I directed the Assessors as follows.
   

..."there is no rule for you to look for corroboration of victim's story to bring home an opinion of guilt in a rape case. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence''...

6. I find that Complainant's evidence was improbable, inconsistent and unbelievable and the Assessors had ample reasons to disbelieve her. I summarize my finding as follows.
   
   1. The Complainant in her evidence said that her mother, Fatima, encouraged her to have an intimate relationship with the Accused, Fatima's adult cousin. Fatima even allowed her daughter to share the same bed at night with the Accused when he used to visit them. Fatima in her evidence denied having done so. Generally, such behaviour towards a daughter by a mother is highly improbable. However, I directed the Assessors to decide that point in the context of this case and to evaluate truthfulness of Fatima's evidence and that of her daughter's about her mother's behaviour and come to their own conclusions.
      
   2. Incident of rape in early September had happened without Complainant's consent. The Accused had committed many acts she did not like during that period including touching, kissing and forceful sexual intercourse. She had not informed or complained promptly about those incidents to her parents, friends, relatives, teachers or anybody else. Complainant failed to give any acceptable explanation for belated complaint. She said, in cross examination, that if somebody punched or did something bad to her she would have complained it to her teachers and parents. She had failed to complain promptly about the rape, a more severe assault.
      

III. Given the complainant's age, lack of consent on her part is immaterial in this case as an element to be proved in a Rape case. However, when it comes to evaluating credibility of Complainant's evidence, lack of recent complaint evidence about something serious that had happened to her, without her consent, has a considerable effect on credibility of her evidence.

IV. Serious doubt as to credibility is inevitably raised regarding Complainant's belated complaint also. It came at a moment when Complainant's boyfriend, Pups was in trouble. Accused's name came to light only when a Police party visited her on 2nd October 2011 to investigate the rape complaint lodged by her mother against Complainant's boyfriend, Pups. When her mother's complaint against Pups was being investigated the Complainant had informed her Religion teacher, Ifraz-Ud-Din, on 7th October 2011 that she wanted to protect Pups and have the Accused investigated by Police as he (Accused) was the real culprit. The Complainant had also informed Din that she would commit suicide if something happened to Pups. According to Police investigator Arvind's evidence, Complainant had stated to Police that it was not Pups but Accused who raped her. In view this statement investigator was compelled to drop the charge against Pups even though Pups had admitted the rape allegation. In this context, Complainant giving a fabricated statement to Police to protect her boyfriend cannot be ruled out.

V. Ifraz-Ud-Din, Complainant's religion teacher was called to bolster the case for the prosecution by way of presenting recent complaint evidence. At most it was relevant to the question of consistency, or inconsistency, in the complainant's conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Sing & others v. The State Crim.App.12 of 1989.

VI. Procedurally for the evidence of recent complaint to be admissible, both the complainant and the witness complained to, must testify as to the terms of the complaint: Kory White v. The Queen (1991) 1AC 210 at p 251H; Anand Abhaya Raj v. The State Spl. Leave to Appeal No. CAV 0003 of 2014. This was done in this case by calling Ifraz-Ud-Din as a witness. However, time gap between incidents of rape and the 'complaint' is too wide and can hardly be considered as 'recent'.

VII. Even if it were considered as a recent complaint, credibility of Ifraz-Ud-Din's evidence was called into question. The Complainant had informed her grievance to Din on 7th October 2011, nearly three months after the alleged first rape incident, and nearly one month after the last one. That was the time investigation against Pups was in progress. Upon hearing the story, Din was counseling and helping to pacify the Complainant to alleviate her suicide 'threat'. According to Complainant, Din was her role model. That's why Complainant informed Din, not her female class teacher about rape incident. Din had given his statement to Police in this context on 12th October 2001, five days after he heard about the story from the Complainant. Din, as a teacher, had not complained to any authority during that period until he was called to give a statement to Police. In this context, possibility of Complainant making use of her teacher to protect her boyfriend (by naming him as a witness) and possibility of teacher, Din making a statement to Police to help his student cannot be ruled out.

VIII. Assessors had reason to believe that the Complainant was lying when she said that she was not aware, when she gave her first statement, of the fact that Pups was being investigated by Police.

IX. I Observed demeanor of the Complainant carefully. She was evasive and not consistent. When she was asked whether she was slapped by the Accused her answer was 'I can't remember' and 'no'. When she was again asked whether she was slapped because the Accused disliked her talking to Pups, her answer was 'yes'.

X. I had to emphasize to the Assessors the fact that this is a case where the first complaint to Police is made against one person and the investigations and criminal proceedings conducted against another whose name transpired during the course of investigation of the 1st complaint.

7. I directed the Assessors in my Summing Up in Paragraph 92 as follows,
   

"You should also be mindful that Anwer had a grudge with Fatima. Khan was her cousin. Anwer had a motive to go against Fatima and her cousin. SH said in cross examination that she was coached by her father. Later she denied that she was coached".

8. In view of the redirection required by the Counsel for the Prosecution, I reviewed evidence given by Anwer Hussain to ascertain whether he in fact had a grudge with his de-facto wife Fatima and had a motive to fabricate a story against her and her cousin.
   
9. It was transpired in evidence that,
   
   1. Anwer had obtained a Domestic Violence Restraining Order against Fatima.
      
   2. Police had filed a defilement case against Fatima upon a complaint made by Anwer. The case was later dropped as there was no evidence to establish the allegation.
      
   100. Anwer said Fatima stole his money and obtained his lands.
        
   4. Anwer had obtained full custody of Complainant after instituting court case. He had to give up his lands to Fatima on separation and to finalize the custody agreement.
      
   5. Anwer was not happy when he learnt that Fatima's daughter Fariah (Complainant's step sister) had given Complainant's telephone number to the Accused and Fatima and Fariah were brokering a love affair with the Accused. Anwer had even made a complaint against the Accused in May 2011 that the Accused was trying to get closer to her daughter.
      
   6. Complainant said that she was coached by her father before coming to give evidence. Complainant later denied that she was coached and pretended that she did not understand the question. Complainant was a smart witness. She did not answer questions recklessly. She demanded repetition and clarification of questions whenever she needed. I observed her demeanor. I am satisfied that she understood the question and later changed her position.
      
   7. Evidence of the Complainant and that of her father contradicted each other. Complainant admitted that her father knew of the relationship she had with the Accused and the very reason that led to her leaving father was the argument she had with him over the relationship with the Accused. Anwer denied having knowledge of such a relationship and said that he sent the Complainant to her mother to learn cooking, cleaning and woman things.
      
10. I am satisfied, having considered all the evidence led in the trial, that Anwer had a dispute with Fatima though in my terminology in the Summing Up it was phrased as a 'grudge', the term which I redirected to the Assessors to disregard. Anwer was not an independent witness and he had an interest and had a motive to make up a case against the Accused in respect of which a direction in law and fact was required to ensure a fair trial.
    
11. Complainant had told police in her statement on 04th October 2011 that the rape incident in August happened during night. In her evidence she told that it happened during daytime. She said that her statement to Police, which was comparatively closer to the incident, was not correct.
    
12. I am satisfied the Assessors had reasons to believe that the statements contained in the cautioned interview and the charge statements of the Accused are not truthful or not fairly or properly recorded. Accused had not admitted the allegation when he was first interviewed on the 4th of October 2011. His alibi was checked and was established to be true. He was later released. Pups also admitted the rape allegation and he two was released because there was no complaint from the Complainant against him. Only the Accused was charged not Pups. Defence Counsel cross-examined the Police witnesses on the basis that the Accused had not understood the nature of allegation against him and his signature was obtained by force. Police witnesses denied those allegations. It was for the Assessors to assess what weight should have been given to those documents. They were not sure, for whatever reason, that the confession was true, they simply disregarded it.
    
13. I am convinced that the Assessors were justified in coming to an opinion of not guilty to the Count. Their opinion was not perverse. It is open for them to reach such a conclusion on the evidence led in the trial.
    
14. I am therefore of the view that there is no proof of the count beyond reasonable doubt. I accept the opinions of the Assessors and the Accused is acquitted and discharged on the Count.
    

15. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
On 22nd July 2015

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