State v MK - Judgment [2015] FJHC 786; HAC157.2012 (20 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 157 OF 2012

STATE

V

M.K.

Counsel : Mr. R. Kumar for the State
Mr. M. Raza for the Accused

Dates of Trial : 12th, 13th, 14th, 15th and 16th October 2015
Summing Up : 19th October 2015
Judgment: 20th October 2015
Names of the parties are permanently suppressed.

JUDGMENT

[1] The accused is charged with the following two counts:

FIRST COUNT
Statement of offence

Rape– contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009

Particulars of the Offence

M.K. on the 18thday of October 2010atDavuilevu in the Eastern Division, had carnal knowledge of S.P. without her consent.

SECOND COUNT
Statement of offence

Rape– contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009

Particulars of the Offence

M.K. on the 28th day of October 2010 at Davuilevu in the Eastern Division, had carnal knowledge of S.P. without her consent.

[2] His trial proceeded before three assessors, who delivered their unanimous opinion at the conclusion of the trial, that the accused is guilty to both charges of Rape.

[3] I direct myself with the summing up delivered to the assessors and embark on an evaluation of the body of evidence placed before Court in its entirety. I am mindful of the principles enunciated by the Supreme Court in Praveen Ram v State [2002] FJSC 12, cited with approval in Vulaca v State [2012] 2 FLR 232 at 233, of the role of the trial judge in relation to the statutory provisions contained in Section 237(2) of the Criminal Procedure Decree 2009. Having evaluated the evidence in light of the principles contained in the judgments of the apex Court, I pronounce reasons for my judgment as follows.

[4] The prosecution called two witnesses in support of their case. These two witnesses were the complainant and her mother.

[5] In her evidence, the complainant S.P. stated that the accused is her father in law and, had lived with her in-laws after marriage to their only son, in August 2010. On 10thOctober 2010, she was taken to her mother's place by the accused due to her sickness, which later transpired in cross examination as a failed attempt of suicide. At her mother's place, the accused had massaged the complainant on her legs, arms, stomach and back in the presence of her mother.

[6] The complainant's evidence on the events of 18th October 2010 is that in the morning the accused had taken his wife to a medical clinic. The complainant remained at home attending to house chores. The accused returned home and offered her help. He told the complainant that she needed a massage as she looked sick. She said she is OK. Then the accused had grabbed her hand and took her into his room. He had thereafter removed her undergarments, held her hands up by one hand while closing her mouth with the other. He had then inserted his penis into her vagina.

[7] Evidence in relation to second count is on 28th October 2010, the accused left home for work in the morning. The complainant was at home with her mother in law and her father called "Tata". Around 9.00 a.m., her mother in law received a call from the accused requesting her to come to his work place to assist him. She left home about 11.30 a.m. About 12.30 p.m. the accused returned home alone. He spoke to "Tata" and accompanied him to a neighbour's house. The accused came back alone, closed the gate,the main door to the house and had a shower thereafter. The complainant by this time was in her room, and was on her computer.

[8] The accused had then entered her room, closed the door, and drew curtains. The complainant attempted to go out of the room, but was prevented by the accused. He had come to massage her. He had pushed her to the edge of the bed, kissed on her lips, placed her on bed, removed her undergarment and inserted his penis into her vagina. She was in pain and tears. Thereafter, the accused left the house.

[9] The accused opted to give evidence and had called his son and a neighbour as his witnesses.

[10] Replying to the allegations of rape, the accused had taken up the defence of alibi. In his evidence he said that (referring to 18.10.2010) on that day he left home at about 6.00 am with his wife to a nearby medical clinic, and having dropped his wife there, had proceeded to his office. According to him, on that day he had returned home only in the night at about 10.00 pm.

[11] In relation to the 2nd count, his evidence was that he was at his office and returned home only at about 2.45 p.m. and that also to repair his van. By 3.30 p.m. the van was repaired by the mechanic Raj Dev and he went back to office at about 5.00.p.m. The complainant had prepared and served tea on them when they attended to the repair.

[12] I will now proceed to consider the truthfulness and reliability of the complainant's evidence, as she is the only witness to the alleged acts of rape. She is a graduate of FNU and her evidence should be evaluated in consideration of that fact. It transpired from her evidence that she had not complained these incidents to any person until she told that to her husband on the 30th October. By then she had returned back to her mother's place. Only thereafter she had told this to her own mother. She offered several reasons for not disclosing these incidents although she was "disgusted" about it. She says that there was no opportunity to speak to her husband and she did not know how to bring this issue up. The reasons for not disclosing the incidents to any person are acceptable and convincing.

[13] Her evidence is consistent and there were no inconsistencies with her statement to Police. And therefore it is my considered view that her evidence should be regarded as consistent narration of her version of sequence of events.

[14] When her evidence is considered on the basis of probability of the version, it must be noted that the sequence of events as narrated by her, is also a probable one.

[15] However, the accused sought to challenge her credibility on the following points;

i) He maintains that these allegations are "a figment of her imagination" as it never happened,

i). She created this story so that she could move to her mother's place with her husband to look after her parents. Her two brothers have already migrated and her father is a sick man.

[16] I have carefully observed her manner of giving evidence. She displayed a confident attitude in the witness box and was frank when cross examined on difficult areas. She, without vacillation, admitted that she had attempted suicide and also admitted her acceptance of her husband's offer of "2nd chance" to revive her marriage.

[17] The assessors were directed to consider all evidence for consistency and also for probability of the version of events. They were also directed to observe demeanour of those who gave evidence. They have disbelieved the accused's alibi and have accepted the complainant's evidence as truthful and reliable. I accept the evidence of the complainant as truthful and reliable account. I also refer the accused's evidence on alibi. I concur with their unanimous opinion that the charges of Rape against the accused were proved by the prosecution beyond a reasonable doubt. I am convinced that the assessors are justified in forming their opinion as to the guilt of the accused. It was open for them to reach such finding on consideration of the body of evidence placed before its entirety and their opinion therefore is not perverse.

[18] In the circumstances, I accept the opinion of the assessors and convict the accused on the two charges of Rape.

[19] This is the judgment of this Court.

ACHALA WENGAPPULI
JUDGE

At Suva
20thOctober 2015

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitors for the Accused : Mehboob Raza& Associates