State v Tazim - Judgment [2016] FJHC 222; HAC013.2015 (18 March 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 013 OF 2015

STATE

v.

MOHAMMED TAZIM

Counsel: Mr. L. Fotofili for State
Mr. A. Paka for Accused

Dates of Hearing: 16 and 17 March 2016
Date of Summing Up: 18 March 2016
Date of Judgment : 18 March 2016

JUDGMENT

[1] The accused is charged with the following offence:

Statement of Offence

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

Particulars of Offence

MOHAMMED TAZIM on the 7th day of March, 2012 at Seaqaqa, in the Northern Division had carnal knowledge of RAUSIA MARZEENA BI without her consent.

[2] After trial three assessors unanimously opined that the accused is not guilty of the charge. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.

[3] Prosecution called 3 witnesses including the complainant, and the defence called 1 witness, the father of the accused.

[4] According to the evidence of the complainant, on the day in question she had been living with the accused as husband and wife in accused's house. Accused's parents had been living with them. After dinner they have gone to their room to sleep. Accused's parents had gone to the room which is adjacent to their room.

[5] The house was made of corrugated iron and if a person shouted from one room the person in the other room could hear. The evidence of the complainant was that the accused wanted her to remove her clothes and when she refused he scratched her face with finger nails, tied her hands and legs with a rope, assaulted her with a chain which is used to tie a cow and also that he poked the bottom of her feet with an iron file. When she said 'No,' he had assaulted her again and tried to suffocate her neck with his hands. When she shouted his parents had come and scolded the accused. Then the accused had hit her on the head and she had fainted. She had regained consciousness only the next morning at 6am.

[6] Following morning she had got up and had cooked food. She then had gone across the neighbor's house and had told her what happened to her.

[7] Then she said that the accused had forceful sex that night. It had been after scratching her face. She said that they had sex twice, once in the night and then in the morning. Then she said that in the night she consented to sex, because he did not assault him. In the next morning he had forceful sex, she said. She again said that she agreed to sex as the accused forced her.

[8] The neighbor lady had taken her to the police station. She was examined by a lady doctor, she said. The medical doctor who examined the complainant in her evidence said that there were no visible injuries in the complainant's vagina area. In her evidence she said that she was observant and vigilant on the complainant and that she did not observe a black eye or any other injuries. The complainant was examined by the doctor the very next day.

[9] Although the accused is not charged with the offence of assault obviously the evidence of assault was led to consider whether the consent to sex was voluntary, if she consented.

[10] If the complainant had a black eye the doctor could have seen. The alleged assault by the complainant would definitely have left conspicuous injuries. Especially the black eye and abrasions caused by the finger nails on the face. The complainant would have got severe injuries if she was assaulted by a chain that is used to tie a cow.

[11] The complainant initially said that when she was assaulted by the accused in front of his parents she got fainted. She had regained consciousness only next morning at 6am. She again said that she was up whole night and that the accused slept.

[12] The complainant was inconsistent in her evidence right throughout and therefore I find that her evidence cannot be relied upon. Hence I find that the prosecution has failed to prove the charge of Rape beyond reasonable doubt.

[13] Therefore I agree with the unanimous opinion of the three assessors that the accused is not guilty of Rape as charged and acquit the accused accordingly.

Priyantha Fernando
Judge

At Labasa
18 March 2016

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