State v Balak [2015] FJHC 706; HAC260.2014 (30 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

CRIMINAL CASE NO.HAC 260 OF 2014

STATE

V

SHIU BALAK

Counsel: Ms D. Kumar with Ms U. Tamanikaiyaroi for the State
Mr. T. Sharma for the accused.

Dates of hearing: 28, 29 and 30September, 2015
Date of Judgment: 30 September, 2015

JUDGMENT

1. Shiu Balak, you have been charged with the following offences:

COUNT ONE
Statement of Offence

RAPE: contrary to section 207(1) AND (2) (A) OF THE Crimes Decree No. 44 of 2009

Particulars of Offence

Shiu Balak between the 1st and 31st day of January, 2014 at Tailevu in the Eastern Division, had carnal knowledge of (name suppressed), a child below the age of 13 years.

COUNT TWO
Statement of Offence

DEFILEMENT: contrary to section 215(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Shiu Balak between the 1st and 30th day of June 2014 at Tailevu in the Eastern Division had unlawful carnal knowledge of (name suppressed), a child above the age of 13 years and under the age of 16 years.

COUNT THREE
Statement of Offence

DEFILEMENT: contrary to section 215(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Shiu Balak between the 1st day of July 2014 and 31st July 2014 at Tailevu in the Eastern Division had unlawful carnal knowledge of (name suppressed), a child above the age of 13 years and under the age of 16 years.

2. Three assessors have returned with unanimous opinions that you are guilty on each count.

3. The prosecution evidence was led by the complainant who, very tentatively at first told the Court of the three incidents that led to the three charges. She was definite and determined in her retelling of the events and was unshaken in cross-examination.

4. Defence counsel submitted that as a member of a Christian family she should never have taken the oath on the Ramayan. The oath can be taken on any book of the witness' choice and her taking of the oath on the Ramayan, a holy book central to Indian culture cannot be criticized. Moreover, as she is only 14, I checked that she did understand the nature and meaning of the oath and she satisfied me in her response.

5. The complaint's father, brother and teacher confirmed the complainant's evidence with relation to the three events. The teacher even told us that he had been stopped in the street by the accused who was known to him and who said to the teacher "please save me".

6. The medical evidence disclosed no sign of injury and the hymen was contact. The doctor said that if the abuse were more than 72 hours before examination there would be no bruising or laceration and as such a young girl even the hymen would heal and become intact again.

7. The accused gave evidence of total denial of contact. He was evasive and his evidence lacked a degree of common sense. I did not believe him and nothing he said threw doubt on the prosecutions case.

8. I direct myself on my summing up and agree with the assessors. I find that in believing the complainant's evidence along with the State's other witnesses, the State has proved these offences beyond reasonable doubt and I find the accused guilty of each of the three charges. I convict him of all three accordingly

9. That is the judgment of the Court.

P.K. Madigan
Judge

At Suva
30 September 2015