State v Singh - Judgment [2015] FJHC 936; HAC27.2013 (30 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 27 OF 2013

STATE

V

AMARJEET SINGH

Counsel : Mr. S. Nath for the State
Mr. J. Lagi for the Accused

Date of Summing Up: 25th of November, 2015
Date of Judgment: 30th of November, 2015
(Names of the complainants are suppressed. They are referred to as YK and SK)

JUDGMENT

1. The accused was charged with following counts and tried before three assessors.
   

FIRST COUNT
Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Decree 44 of 2009.

Particulars of Offence

AMARJEET SINGH on the 18th of January, 2013 at Namulomulo, Nadi, in the Western Division, attempted to insert his penis into the anus of YK, a 6 year old girl.

SECOND COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

AMARJEET SINGH on the 18th of January, 2013 at Namulomulo, Nadi, in the Western Division, inserted his penis into the vagina of SK, a 7 year old girl.

THIRD COUNT
Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Decree 44 of 2009.

Particulars of Offence

AMARJEET SINGH on the 19th of January, 2013 at Namulomulo, Nadi, in the Western Division, attempted to insert his penis into the anus of YK, a 6 year old girl.

FOURTH COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

AMARJEET SINGH on the 19th of January, 2013 at Namulomulo, Nadi, in the Western Division, inserted his penis into the vagina of SK, a 7 year old girl.

FIFTH COUNT
Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 of the Crimes Decree 44 of 2009.

Particulars of Offence

AMARJEET SINGH on the 29th of January, 2013 at Namulomulo, Nadi, in the Western Division, rubbed his penis on the leg of YK, a 6 year old girl.

2. Assessors unanimously found the accused guilty of all the counts. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.
   

3. Both the complainants were under the age of 13 years at the time of the incident. Therefore, Prosecution does not have to prove that the alleged sexual acts were committed or attempted to be committed without complainant's consent.

4. Prosecution called the two complainants, SK, YK, their mother, Hem Lata, and the Doctor as witnesses.

5. Prosecution evidence is consistent, plausible and believable. On the other hand, Defence version is not consistent and believable. Although the accused has nothing to prove his innocence or prove anything at all, he failed to create any doubt in the Prosecution case. Evidence led in the trial by the Prosecution proved all the charges beyond reasonable doubt.

6. Both complainants presented direct evidence in respect of Rape and Attempted Rapeincidents. Their evidence was consistent, probable and believable. Although their evidence need not necessarily be corroborated by an independent source, they corroborated each other without any contradiction. Prosecution case was further bolstered by recent complaint evidence of the mother of the complainants, Hem Lata and by doctor's expert evidence which is consistent with rape of SK.

7. In respect of the fifth count of Indecent Assault, YK provided direct evidence which was supported by recent complaint evidence of her mother and sister, SK.

8. Both complainants said that after the alleged incidents they could walk properly.SK had only a slight headache. Defence Counsel argued that if SK was really raped her situation would have been different.

9. Lack of injuries or distress evidence does not necessarily imply that rape never took place. Doctor who examined SK nearly two weeks after the alleged rape incidents was of the opinion that some kind of penetration of her vagina, whether penile or digital, had taken place. She also opined that vaginal penetration had been on-going over a period of time. She had found SK's hymen not intact and had observed abnormal conditions in SK's vaginal area consistent with repetitive sexual intercourse. Doctor was not speculating. She gave reasons for her opinion which are convincing and acceptable. She had reached her opinion taking into account all the necessary matters. Her opinion is consistent with and supported rest of the evidence led in the trial.

10. Hem Lata had not examined the complainants upon receiving the complaint. Nor had she gone to a doctor with her daughters soon after she received the information. Her conduct was not improbable given the circumstances of this case. According to SK, the first alleged rape incident took place on the 18thof January, 2013, the second incident on the 19thof January, 2013.Hem Lata said that she received the first complaint after four days, on the 23rdof January, 2013.There was a gap of four days between the last alleged rape incident and the complaint thereof. Complainants had not described in their complaints the full extent of the sexual conduct(sexual intercourse) on the part of the accused.

11. It is also not improbable in the circumstances of this case that girls in the age range of 6 and 7 years to be aware of or familiar with the apparatus condom. YK said she knew about condoms. Her mother had told her about condoms when she was given them at the hospital. Mother keeps condoms in the same wardrobe where they keep their clothes. Complainants having knowledge about condom is probable.

12. Complainants had not complained to her mother about the incidents at the first available opportunity. Defence Counsel argued that it is highly improbable that they waited for such a long time to complain.

13. It appears that complainants had reasons not to complain. Chintu had asked them not to tell mum, and had cautioned that if they do he will go to jail and no one will be there to cuddle them. Sending cousin who cuddles them to jail may not be a welcome move for the complainants.

14. Victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could also be due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. It takes a while for self- confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape: The State v WaiseaVolavola Cr. App. HAA 106/2002S
15. Evidence of recent complaint adduced in this trial, no doubt, boosted the credibility of the prosecution case.

16. Hem Lata reported the matter to Police on 31stof January, 2013. She said that she took seven days to relate the matter to her husband because she thought it is a lie and she was not assured. There was another discouraging factor also. Chintu is her husband's nephew. Husband was insisting her not to report the matter to police. YK had told Hem Lata about these incidents little by little because Chintu had told her not to tell. YK had come up with the full story only after the incident at the well on the 29th of January 2013.In this context, explanation given by Hem Lata for the delay in reporting to Police is acceptable.
17. The complainants were six and seven years old at the time of the alleged incidents. I observed Complainant's demeanour. They were frank, straight forward and not evasive. Children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as their age and immaturity.

18. They may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak.

19. 'Doing sit-ups on accused's punnu', 'his punnu went inside pupu' were some of the expressions the complainants used during course of the trial. SK even demonstrated to Court how she did sit-ups on accused's punnu. YK's failure to demonstrate how she did sit-ups may have been due to shyness or nervousness.

20. It appeared that there was no acceptable reason or motive for complainants to fabricate a story against the accused and put him in trouble. Version of the Defence was that Hem Lata was not on good terms with the accused and that complainants lied to Police and to Court on Hem Lata's instructions. Hem Lata totally denied the assertion of the Defence. She also denied having had an affair with Mohammed Ameem. She said she did not even know such a person.

21. Hem Lata's evidence that she never knew Ameem is not consistent with that of her daughter, SK's while her sister, YK's evidence conformed to her mother's evidence on that point. I directed the assessors on inconsistencies. Assessors found Hem Lata's evidence truthful in light of overall evidence led in the trial. Finding of assessors, in my view, is not perverse.

22. Defence failed to create any doubt in the Prosecution case. Accused said that the entire village knew about the relationship Hem Lata was having with Ameem. However, he failed to call a single witness from the village to support his version.

23. Accused admitted that no action was taken against Hem Lata by her husband, Sailesh, when he informed about the relationship she was having with Ameem. This conduct of Saileshis quite unnatural if such a relationship did in fact exist.

24. Accused's assertion that Hem Lata was not good with him as he refused to give her money was never put to Hem Lata when she was giving evidence.

25. If Hem Lata was falsely implicating him, accused could have called his uncle Sailesh to support his version.

26. Accused said in evidence-in-chief that Ameem stayed in the bush evading arrest and Hem Lata took food to him in the bush. In cross examination he said that Ameem stayed in the bush as well as in the house of the complainants. His version was not consistent.

27. Accused's evidence was unsatisfactory, implausible and unacceptable. Defence failed to create any doubt in the Prosecution case.

28. Hem Lata and SK were referring to a person by the name of Chintu. There is no dispute that the accused was the cousin of complainants and that he was staying with them in Sipia for a long time, particularly during the relevant time of the alleged incidents referred to in the information. Accused admitted in his evidence that he was staying with the complainants in their house although he denied the alleged acts. It is agreed in agreed facts that on 31stJanuary, 2013, Hem Lata lodged a report against the accused at the Nadi Police Station.

29. Prosecuting Counsel failed to give either Hem Lata or SK an opportunity to recognise the accused in Court even though there was a reasonable foundation for them to do so. However, YK recognised the Accused in the dock as the person she was referring to as Chintu. I am satisfied that the person referred to as Chintu by other witnesses for the Prosecution is non-other than the Accused himself.

30. Evidence adduced by the Prosecution was sufficient to prove all the charges against the accused. SK said that she did sit-up's on Chintu's punnu, meaning penis, on 18th and 19th of January, 2013. Accused's punnu went inside her pupu, the part she urinates. Her experience was painful. She was bleeding. Doctor found her hymen not intact and vaginal opening abnormally soft, suggesting repetitive penetration.

31. YK said that Chintu asked her to get on top of him and do the sit-ups (sitting and getting up like doing the sit-ups) on her punnu after removing her panty. She did sit-ups on his punnu. On the 18thof January, 2013 he had to give up his attempt halfway as she was reluctant to do the sit-ups continuously, saying it was painful. On the following day, Chintu asked her to do the same, this time having applied coconut oil on her pupu. But his attempt failed as she refused saying it's painful. Soon after he failed in his attempt on YK, accused had penetrated vagina of her sister, SK,with his penis on18th as well as no 19th of January 2013.

32. There was ample evidence from which the intent to rape could be inferred and acts of the accused are more than merely preparatory but calculated attempts to commit the offence of rape.

32. On the 29th January, 2013, accused lowered his zip of his trousers, took out his punnu, meaning penis, and rubbed it on YK's legs. This act, in the eyes of reasonable man or woman, is indecent.

33. I accept the evidence of the Prosecution and reject that of the Defence.

34. Prosecution has proved the case beyond reasonable doubt. Opinion of the assessors is not perverse. It is open for them to reach such a conclusion on the evidence led in the trial.

35. I accept the unanimous opinion of the assessors. Accused is convicted on all the counts as charged in the Information.

36. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
30th November, 2015

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