State v Singh - Summing Up [2016] FJHC 248; HAC91.2013 (1 April 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 91 OF 2013

STATE

V

AJIT SINGH

Counsel: Mr. A. Datt for the State
Ms. J. Lagi for the Accused

Dates of Hearing : 21st March, 2016 - 30th March, 2016
Date of summing Up: 1st April, 2106

(Name of the victim is suppressed. She is referred to as SP)

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial, to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. In other words you are the Judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

5. The counsel for Prosecution and the accused made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.

7. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.

8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case outside of this courtroom. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial.

10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12. In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. Incidents of rape and abduction would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such incidents. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offences with which the accused-person is charged, in a short while.

14. In this case the Prosecution and the defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this court.

15. The agreed facts of this case are:

1. The accused in this case is Ajit Singh of Waivuka, Ba.

2. The complainant in this case is SP of Moto, Ba.

3. In the year 2013, SP was residing with her aunty Prabha Wati at Moto, Ba.

4. The complainant's legal guardian is Prabha Wati.

5. Sometimes in May 2012 the accused, Ajit Singh again had sexual intercourse with the complainant, SP at Ba Hotel.

6. The house of Prabha Wati is located in Moto, Ba.

7. On the 17th of April 2013 the accused, Ajit Singh had sexual intercourse with the victim, SP inside PrabhaWati's house.

8. The victim, SP was medically examined on 18th of April 2013.

16. According to the amended Information, charges against accused are as follows:

FIRST COUNT
[REPRESENTATIVE COUNT]
Statement of Offence

ABDUCTION OF A YOUNG PERSON UNDER 18 YEARS OF AGE WITH TEND TO HAVE CARNAL KNOWLEDGE:Contrary to section 211 of the Crimes decree No.44 of 2009 and section 70(3) of the Criminal Procedure Decree No. 43 of 2009.

Particulars of Offence

AJIT SINGH between the 1st day of November 2011 and the 31st day of May 2012 at Ba, in the Western division, with intent that SP, being unmarried and being under the age of 18 years, be unlawfully and carnally known by AJIT SINGH, took the said SP out of the possession and against the will of her aunty, PRABHA WATI on more than one occasion.

SECOND COUNT
[REPRESENTATIVE COUNT]
Statement of Offence

RAPE: Contrary TO SECTION 207 (1) AND (2) (a) of the Crimes Decree NO. 44 of 2009 and section 70(3) of the Criminal Procedure Decree No. 43 of 2009.

Particulars of Offence

AJIT SINGH between the 1st day of November 2011 and the 31st day of May 2012 at Ba, in the Western Division, penetrated the vagina of SP with his penis without her consent on more than one occasion.

THIRD COUNT
Statement of office

RAPE: Contrary TO SECTION 207 (1) AND (2) (a) of the Crimes Decree NO. 44 of 2009

Particulars of Offence

AJIT SINGH, on the 17th day of April 2013 at Ba, in the Western Division, penetrated the vagina of SP with this penis without her consent.

FOURTH COUNT
Statement of Offence

COMMON ASSAULT: Contrary to section 274 of the Crimes Decree No. 44 of 2009

Particulars of Offence

AJIT SINGH on the 16th day of April 2013, at Moto, Ba in the Western division unlawfully assaulted SP.

I will now deal with the elements of the offences.

17. First count of Abduction is a representative count. By framing the charge in such a way, Prosecution alleges that the accused committed this offence more than once over a period of time mentioned in the information.

18. In respect of the charge of abduction, Section 211(1) of the Crimes Decree provides as follows:

"Any person who, with intent that any unmarried girl under the age of eighteen years shall be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, takes or causes to be taken such girl out of the possession and against the will of her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.''

19. It must be proved that:

(a). the accused

(b). took or caused the complainant to be taken away out of the possession and against the will of her guardian.

(c). victim was unmarried and under 18 years old at the time of incident and

(d). the taking away was with the intention to have carnal knowledge of the victim

20. "Taking" need not be by force, either actual or constructive and it is immaterial whether the girl consents or not. In a 'Constructive taking' the person abducted is not taken out of the possession of his or her parents or guardian by the perpetrator physically but, by some act, words or conduct, he or she cause the victim to leave his/ her parents or guardian. There must be some evidence that there was a "substantial interference with the possessory relationship of parent and child"

21. Section 211 (2) provides for a defence in the following terms:

"It shall be a sufficient defence to any charge under this section if it shall be made to appear to the court that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of eighteen years."

22. I now deal with the elements of offence of Rape. There are two counts of rape. Second count of Rape again is a representative count.

A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extend with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extend with the person's penis without the other person's consent.

23. Carnal knowledge is to have sexual intercourse with penetration of the woman's vagina by the man's penis to any extent. So, that is Rape under Section 207 (2) (a) of the Crimes Decree.

24. So, the elements of the offence of Rape in this case are that:

(a). the accused

(b). penetrated the vagina of complainant to some extent with his penis

(c). without her consent

25. Other parts of the offence are irrelevant to the facts of this case.

26. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

27. A person's consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

28. I will now deal with the elements of the 4th count, Common Assault:

Common Assault is the assault person wson without lawful excuse.

29. Elements of the offence that could be extracted from the above section are:

(a). Accused,

b). Unlawfully,

(c). assaulted,

(

(d). the Complainant.

30. The prosecution does not have to prove that the assault resulted in any injury. But you must be satisfied so that you are sure that the Accused did assault the complainant, and that he did not act without lawful excuse. 'An "unlawful act", is simply an act not justified in law. For example, punching and kicking would be "unlawful acts". They are "unlawful acts" because they are assaults in law, that is, they are an unlawful application of force to the person of another, and therefore unlawful.

31. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the complainant was a witness who offered direct evidence, if you believe her as to what she saw, heard and felt.

32. Documentary evidence is the evidence presented in the form of a document. In this case, cautioned interview statement is an example if you believe that such a record was made. Then you can act on such evidence.
I will now deal with the summary of evidence in this case.

Evidence of the Complainant

33. Prosecution called the Victim, SP as the first witness. She was 21 years old at the time she gave evidence. She tendered her birth certificate as PE2. She was living in Moto with her aunt Prabha Wati. Her both parents had passed away. Her father died in December, 2012. In September 2011, she received a phone call from one Ajit who was not known to her before and wanted her to be his girlfriend. She replied 'I do not know you, so I can't be your friend'. She then switched off the phone. When she switched the phone on after some time she saw number of missed calls from the same number. Finally she answered the phone and asked 'what do you want?' He said I just want to be your friend'... 'I know you are schooling at A.D. Patel' and really wanted her to be his. She refused to talk to him as she did not have prior knowledge of him and disconnected the line. He kept on calling.

34. She did not tell anyone about those phone calls because she knew that by that time, he had gathered all her information. Her father was not in good health.

35. One day, when she is in Ba town, she received a call from Ajit again. He said 'I can see you here if you want you come and meet me'. She saw Ajit near the bus stand and identified him by the description he had given of himself over the phone. But he did not talk to her as her aunt was around. In the same night, she again received a call from Ajit and said that he was really interested in her and wanted her to be his girlfriend. She refused. Nevertheless, he kept on calling. She did not answer and switched off the phone.

36. After 2-3 days, when the pone was on, he rang up again. She picked up the phone and asked him 'what do you want?'. Surprisingly, it was not Ajit. The personon the other side introduced himself as Vikash. He said that Ajit was trying to commit suicide and he was in a critical condition in the hospital. She believed that the caller was Ajit because he had a similar voice as Ajit. However, he managed to convince her that he was not Ajit but Vikash. Vikash asked her why she was refusing to talk to Ajit and refusing to be with him. He further said that if anything happens to Ajit then he will come to her place and take her into custody. Vikash introduced himself as an army officer. She was really scared.

37. She did not tell anybody about this because Vikash had warned her not to tell anyone. If she were to tell he would harm her family. Vikash seemed to have gathered all her information. She got scared and agreed to talk to Ajit on the phone because she feared that Vikash will harm her family.

38. After that Ajit called and wanted her to meet him at the Ba Hotel. She refused. Ajit disconnected the phone. Soon thereafter, she received a call from Vikash and warned her that if she did not come and meet Ajit he will harm her father. She was scared and agreed to meet Ajit at the Ba bus stand. This happened in November, 2011.

39. She went and met Ajit at the Ba bus stand. Before the meeting, she received a call from Vikash and warned her not to be over smart and stupid. He said that he is in the town watching her. Vikash described the dress she was wearing and the colour of it to make her believe that he was watching her movements. She refused to go to the Ba Hotel when she met Ajit. Ajit reminded her the warning given by Vikash and wanted her to accompany him to the Hotel to have sex with her. He thought of her father and family and finally decided to go to the Ba Hotel. He went first. She followed him.

40. When they arrived at the Ba Hotel, a room was already booked by Ajit. He locked the door of the hotel room. He was sitting on the bed talking to her. She insisted that she did not want to do anything. Then he reminded her again of the warning given by Vikash. Finally she agreed to his words. He undressed her, kissed on her lips, neck and stomach. She was crying and begging him to move away from her. Then he undressed himself and inserted his penis into her vagina, three to four times. It lasted for 10-12 minutes. She was in pain; burning sensation was around her vagina. She felt blood coming out. She said she did not give consent to him to have sexual intercourse. Because of the threats she agreed. When she was crying, he assured her that anything of that sought would never happen again as she slept with him and Vikash won't harass her or her family again.

41. Then she went home alone. She did not tell what happened to her either to her father or aunty because Vikash had told her that if he she told about any of the things he will harm her family.

42. She received a call from Ajit three to four weeks later and talked to her nicely. He did not call her frequently. In May 2012,Ajit started calling her again on her mobile number frequently and threatened her. She stopped answering the calls. Then she started to call her land line number. She was surprised as to how he became aware of his landline number. She observed a certain change of behavior in him. She discontinued the call saying she was busy. Then she received a call from the same number and this time it was Vikash. Vikashtold her that because of her Ajit is sad and asked her to meet Ajit again. He further said if she failed to meet him again he will either go to her school or come to her house and inform the principal or father that she had slept with him. She got scared.

43. On the following day she got a call from Ajit. Having reminded her of the warning given by Vikash, he asked her whether she is coming or not. She agreed because she feared that Vikash will harm her family or come to the school or house. She went to the Ba Hotel in May 2012 and met Ajit in the same way as she had done earlier. He had booked a room.

44. In the room, he removed her cloths, kissed on her lips and neck, made her lie on the bed; he undressed himself and inserted his penis into her vagina several times for 15-20 minutes. She felt bad and wanted to run away from there. She said 'even death came I would have accepted it rather than being in that situation'. She was crying, got off the bed and washed herself. He said sorry and assured her again that it won't happen again.

45. When she returned home, she did not inform the second incident to anybody because of the fear instilled in her that Vikash would harm her family. Even though Ajit assured her safety she could not rely on his words. She had to face it again despite his assurance and it was back of her mind that he could do anything to her and her family.

46. For some time after the second incident, Ajit did not call her frequently. She was concentrating on her studies and her ailing father who was in a critical condition.

47. Her father passed away in 2012. On 13th April 2013 she received a call again from Ajit. When talking, he suddenly got angry and wanted to come to her place. She clearly said 'no'. When he insisted, she asked him to do whatever he wanted and disconnected the phone.

48. When she was closing the doors and windows on a Tuesday evening, she was shocked to see Ajit in her bedroom. She wanted to scream but he covered her mouth with his hands. He slapped her on her cheeks and stomach area. He also punched twice on her upper right arm. He told her that if she screamed or told her aunt that he was there, she can imagine what he could do to her aunt. She asked her to leave but he refused. He stayed whole night in her underneath her bed where she slept. Aunty did not know anything.

49. On the following morning, she went to school. When she returned in the afternoon she found him still in her room. He was feeling hungry and wanted her to bring some food for him. She got angry and refused to bring food. Then he threatened to go out himself to be caught by her aunty. She got scared and brought him some food.

50. In the night she went to sleep on her bed while he slept underneath the same bed. When her aunt went to sleep, he said he wanted to sleep with her. She refused. Then he himself came on top of the bed and removed her cloths by force. He kissed her neck and inserted his penis inside her several times. She was crying and did not agree to have sex with him.

51. On Thursday morning, she went to school. He did not leave as promised. She said that her own house had become horror to her and felt her school safer than home.

52. Under cross examination, Complainant admitted that she may not have stated to police that she had told Ajit that she was schooling at A.D.Patel. She said that, at the time she gave the statement, she was in a state of shock and trauma. She said that when he called her over the phone, he told her and knew that she was studying at A.D. Patel.

53. Complainant said she did not complain to anybody because of the fear Ajit and Vikash had instilled in her. For the same reason, she did not run away or scream. She denied that she was in a relationship with Ajit at any time. She had to speak to Ajit because of the fear instilled in her by Vikash.

54. Complainant flatly denied that it was she who made advancement towards accused and that she consented to have sexual intercourse. She denied having said to him that she was 21 years old when she first met him. She also denied that she made up the allegation with her aunt because she was embarrassed of the fact that she was involved with an old man.

Evidence of Prabha Wati

55. Next witness for the Prosecution was Complainant's Aunt, Prbha Wati. On 17th April 2013, around 10.30 in the morning she was sweeping the floor of her house at Moto. She could smell tobacco and looked everywhere. When she entered the Complainant's room the smell was stronger. When she lifted up the bed sheet, she saw a man sleeping underneath the bed. Then she started shouting for help. The mantried to run away from the back door. Neighbors started chasing him. He was caught and brought back. A neighbor informed Police.

56. She had never seen the accused before. Complainant had never spoken to her about the accused.

57. Under cross examination, she denied that she had met this man at his brother's funeral or at any time before. She also denied that she knew about a relationship the Complainant was having with him since 2011. She also denied that she wanted him to be with her and wanted him to leave the complainant.

Evidence of Cpl. Gayanendra Kumar

58. Cpl. Gayanendra Kumar was the next witness for prosecution. He arrested the accused near the Moto Bridge. He went to Moto with Nicklesh Singh when he received information from one Ambiga that some Fijian people had arrested an Indian man who entered a house. When they arrived there, Accused was surrounded by 4-5 Fijian boys who had caught the accused from the complainant's house. Accused had a severe bleeding nose and visible scratch marks on his arms. He accompanied the accused to the Nukuloa Police Post and locked him up for his own safety as other people were following him to the police post. Then the accused was taken to a Health Centre as he was complaining of head pain. After medical treatment, Accused was taken to Ba Police Station and handed him over to DC Suraj.

59. Under cross examination, witness denied that he or SC Nicklesh assaulting, pushing or intimidating the accused. He also denied having banged the accused's head against a wall.

Evidence of Nicklesh Singh

60. Prosecution called Constable Nicklesh Singh next. He went with Cpl. Gayanendra Kumar who had received some information about a crime in Moto. Beside the road in Moto, accused was surrounded by group of Fijian boys who later handed over the accused to Cpl. Gayan. He could see blood on accused's nose and injuries on his hands. Accused was transported to the Nukuloa Police Post.

61. Under cross examination, witness denied that he or Cpl. Gayan intimidated or assaulted the accused.

Evidence of Doctor Niraj Sharma

62. Next witness was Doctor Niraj Sharma. He conducted the medical examination on the accused at the Ba Mission Hospital. Police officers who brought the accused to hospital had filled the first part of the Fiji Police Medical Examination Form and he was briefed about the history of the patient by the nurse and the police officers.

63. Having handed over the accused to him police officers had to leave the examination room. He noticed injuries on accused's nose and multiple abrasions on his lower back.

64. Part D-10 of the Police Medical Form contained what the accused related to him about the history of injuries. Upon being asked, accused confirmed that the injuries were caused by house owner and nearby workers on the road while he was found trespassing. He did not recall accused telling him about police assaults.

65. Under cross examination, doctor said that if the accused told him that the injuries were caused by police assaults, he would have recorded it.

Evidence of Cpl. Sukhen Singh

66. Next witness for the Prosecution was Cpl. Sukhen Singh. Witness saw the accused while he was in the cell at the Ba Police Station. He took the accused to the Ba Mission Hospital on the request of DC Suraj as there was no police driver available. Accused was handed over to the Doctor. He did not enter the examination room or interfere with the medical examination.

Evidence of DC Aveen Kumar

67. Charging Officer, DC Aveen Kumar gave evidence next. He charged the accused with Rape and sexual offences at the Charging Room of the Ba Police Station. It was an open place where anybody can have access to. He tendered a copy of the English translation of the charge statement marked as PE.7

68. He did not recall seeing any injuries on accused's body. Accused was not threatened, assaulted or intimidated. No promise or inducement offered. Accused did not complain about assaults or threats by any other officer.

69. Under cross examination, DC Aveen said that accused in his statement denied the allegation that he forced the complainant to have sex with him and take off her clothes.

Evidence of DC Sikeli Tokovou

70. Last witness for the Prosecution was DC Sikeli Tokovou. He was the investigation officer. He was briefed by the arresting officer Cpl. Gayan that the accused was arrested by civilians and he sustained injuries at the arrest. However, he did not take statements from the civilians who arrested the accused.

71. That was the case for Prosecution. You heard me explain to the accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined.

72. As you know, Accused elected to give evidence and called a witness on his behalf. Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the Prosecution of the burden to prove their case to you beyond reasonable doubt.

Burden of proof remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate. Even if you don't believe a word the accused person says, you must still be sure that he is guilty of the crimes that he is charged with.

Case for the Defence

73. Accused admitted that he had sexual intercourse with the complainant on two occasions at the Ba Hotel and once at Complainant's house in Moto. He maintained that the Complainant was her girlfriend and she consented to have sexual intercourse.

74. Complainant used to give him missed calls. He called back her and got acquainted with her. After several telephone conversations, Complainant wanted him to come and meet her. She came to the Ba town to meet him. She was talking to him for about 10 minutes. On the first occasion he met her, she told her that she was 21 plus. He inquired her age seven times. Every time the answer was 21.

75. After a week, he met her at the Ba bus stand. They were in agreement that they have sex and went to the Ba Hotel. They shared the cost of the room equally. In the hotel room, they were talking about their wedding for about ten minutes. Then she took off his shirt and trousers. He had sex twice with her consent over a period of 10-20 minutes.

76. Three weeks after the second meeting, they went to the same hotel and had sexual intercourse three times with her consent.

77. In 2011, Accused visited her for the first time at her place in Moto to attend her father's funeral. He went in a hired van and spent there for about two hours. After that he went to her place 5-6 times in a hired van to meet her. He used to get off at the junction and walked to her place. Every time she visited her, aunt Prabha Wati was home with her.

78. In April 2013, both the Complainant and her aunt called and asked him to come to their place for a talk as they wanted some money. He went there on a Saturday and stayed there for six days until he was arrested. Complainant did not go to school from Monday to Wednesday but went to school only on Thursday.

79. After Complainant left for school, Prabha Wati asked him to apply balm on her thighs. He refused saying it's not his job. After having a bath, he ate with Prabha Wati. Then she asked him to be with her and leave the Complainant. He refused saying that she is of his mother's age. Then she told him that if he did not agree she would go out and shout that someone is in her house. He told her not to do that and ruin their lives. She did not listen, went out and shouted. He saw people in the neighbourhood came running towards him. One of them had a knife. He ran outside from the back door. One man pushed him. Both of them fell into the nearby river. Five to six people got caught of him and brought him back to the compound. They did beat him up.

80. Police came after 20 minutes and took him to a police post. His head was banged against the wall and beaten up on his back with a broom stick by one police officer who arrested him. He started bleeding from his nose. He was then taken to a health centre where his nose was cleaned by a doctor.

81. After treatments, he was taken to the Ba Police Station and handed him over to officer Suraj. On the way, the officer who assaulted him was nudging him. He complained to Suraj that he was assaulted. Then Suraj took him to Ba Mission Hospital. He showed all the injuries, his fingernails and nose to the doctor. Doctor did not ask him how he got injured. History was obtained from Suraj who was present in the room throughout the medical examination. He told the doctor that he was assaulted by police.

82. He was then brought back to the Ba Police station where Suraj took his statement. Whatever he told was written down and read back to him. He then signed.

83. He denied having forced or threatened the Complainant to come to the hotel and had sex with her without her consent.

84. Under cross examination, accused said that Suraj was present throughout the medical examination. He said that doctor was lying when he said that a police officer was present during medical examination and that he did not mention about police assaults.

85. When taken to the police post, he was beaten up with a mop handle on his face. At the interview, Suraj was squeezing and pulling his testicles and penis. He was beaten up with a batten and his fingernails were poked. He informed all sort of police harassments to his Counsel who prepared the voir dire grounds in 2013. When referred to voir dire grounds Accused admitted that, given the limited time available, he could have missed or forgotten to mention some of the police assaults to his Counsel.

86. Accused admitted having given most of the answers recorded in the cautioned interview. He said that some of them had been fabricated by police.

87. Defence called Ram Zam as the last witness. He said that accused hired his van 5 to 6 times to go to Moto. He used to drop him near a shop in Moto, beside the road and return. Accused said to him that he was visiting his family.

88. Under cross examination, he said that accused never mentioned that he was visiting his girlfriend.

89. I have summarized evidence I thought of important to you in the light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence. You are the judges of facts you are free to consider the evidence in its entirety and come to your own conclusion.

Analysis

90. There is no issue in this case with regard to the identity of the Accused. Accused admitted that he had sexual intercourse with the Complainant thrice. Only issue as far as the Rape charges are concerned is whether sexual intercourse took place with Complainant's consent.

91. The Prosecution based its case substantially on the evidence of the Complainant and the cautioned interview. Prosecution says that the Complainant was underage girl (under 18) and she was taken out of the possession of her father and guardian against their will and he had sexual intercourse with her without her consent. Defence says that accused believed that Complainant was 21 years old and that sexual intercourse took place with her consent.

92. First, you have to be satisfied that the evidence Complainant gave is truthful and believable. If you are satisfied that the evidence she gave in court is truthful and trustworthy you can safely act upon her evidence in coming to your conclusion.

93. Please remember, there is no rule for you to look for corroboration of Complainant's story to bring home an opinion of guilty in a case of sexual nature. The case can stand or fall on the testimony of Complainant alone depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the complainant's evidence if you think that it is safe to look for such supporting evidence.

94. If you are satisfied that Complainant told the truth and her evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved, each element of counts 1, 2, 3 and 4 in the Information beyond reasonable doubt. You have to consider each charge separately.

95. Inevaluating Complainant's evidence, you consider whether what she was talking about in her evidence is probable in the circumstances of the case.

96. Complainant did not complain any of the incidents to her father, aunt Prabha Wati, her best friend, police or anyone until the accused was arrested. Alleged incidents occurred over a period of nearly two years. Contention of the Defence is that she did not complain because she had nothing to complain and everything happened with her consent. It has also been said on behalf of the Accused that the fact that Complainant did not report what have happened to her as soon as possible makes it less likely that the complaint she eventually made was true.

97. Failure on her part to complain soon after the incident is not necessarily consistent with consensual sexual intercourse. It is only a matter of evaluating consistency of her evidence and credibility. You have to see whether she had given acceptable and legitimate explanation for not complaining at the first available opportunity.

98. Complainant's explanation was that accused and Vikash threatened and kept on threatening her generating in her a fear psychosis that they will harm her family and tell the principal and father that she slept with him. She was fifteen years old when the first alleged incident occurred. She stayed with her father who was sick. After the death of her father, she lived with her aunt. In light of the direction I give with regard to late complaints by rape victims, you consider if her explanation is probable in all the circumstances of this case. It is up to you to form your own opinion on her explanation. Whether that is so in this particular case is a matter for you to consider and resolve.

99. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the Courts is that 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 would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self confidence to re-assert itself. There is, in other words no classic or typical response.

100. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complain. It's a matter for you to determine whether, in the case of this particular Complainant, the lateness of the complaint, such as it is, assists you at all and, if so, what weight you attach to it. You need to consider what the complainant herself said about her experience and her reaction to it.

101. You consider whether Complainant was telling a story on the same lines without variations and contradictions and whether she is shown to have given a different version elsewhere. She had not mentioned in her statement to police the fact that accused told her over the phone that he knew she was schooling at AD Patel. She described the conditions under which she had to give the statement to police. In that context, you consider whether her failure to mention that fact is a material omission and, if it is, it affects the credibility of her evidence.

102. You also consider if the Complainant or her aunt had any motive to make up a case against the Accused. Accused said that he was tricked by the Complainant and her aunt. According to his version, Complainant made up this story to escape from embarrassment at exposure of her having an affair with an old man. Prabha Wati wanted to trick him because he did not give in to her prurient demands. It is up to you to form your own opinion on that.

103. You watched Complainant giving evidence in court. What was her demeanor like? How she reacts to being cross examined and re-examined? Was she evasive? How she conducted herself generally in Court? It is up to you to decide whether you could accept her version.

104. Accused in his cautioned interview statement had admitted that he knew, when he accompanied Complainant to the Ba hotel to have sexual intercourse, that she was an underage girl and that he had threatened her that if she did not go with him he would inform her parents and principal that she slept with him. He had also admitted that he went to her place in Moto when she did not want him.

105. Giving evidence in Court, accused took two different stands with regard to those admissions. He said that he admitted allegations because he was assaulted, threatened and intimidated by police officers. On the other hand he said some answers had been fabricated by police officers. You have before you the cautioned interview statement of the accused in which he had admitted the allegations. You heard police officers and doctor giving evidence. Police witnesses denied those allegations. You also herd accused giving evidence. It is for you to assess what weight should be given to his cautioned interview statement. If you are not sure, for whatever reason, that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it.

106. You watched accused giving evidence in court. You can apply the same tests and your common sense to evaluate the evidence of the Accused. Was he consistent in his evidence? What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How did he conduct himself generally in Court? It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused must find him not guilty. Even if you reject his version still the prosecution should prove its case beyond reasonable doubt.

107. If you accept the evidence presented by the Prosecution, you must also be satisfied that each element of each count had been proved beyond reasonable doubt.

108. Accused, in evidence, admitted that he went to the Ba Hotel twice and had sexual intercourse with the Complainant. He also admitted that he did not speak to her father or aunt before going to the hotel with her. According to the birth certificate, Complainant was born on 14th September, 1995. She was under the age of 18 years during the period mentioned in the information. There is no dispute that after the demise of complainant's father, Prabha Wati became the legal guardian of the Complainant. The evidence that he went to a hotel with the complainant to have sexual intercourse without consulting her father or aunt is sufficient to find that there was a 'substantial interference' with the possessory relationship of parent/ guardian and child.

109. You must find in evidence if the defence that I explained to you earlier is available to the accused before you find him guilty of Abduction charge. Accused said he believed the words of Complainant and was under the impression that she was 21 when they first met. However, he kept on asking her age seven times. He also said that when he was at her place in Moto, she went to school. Accused told police in the cautioned interview that he knew she was only 15 when they first went to the Ba Hotel. Complainant said that accused told her, when he called on phone, that he knew that she was schooling at AD Patel. You consider whether Accused had reasonable cause to believe and did in fact believe that the Complainant was of or above the age of eighteen years.

110. Accused admitted that he had sexual intercourse with the Complainant on three occasions. If you believe the Complainant's evidence that she did not consent to sexual intercourse, you can find the accused guilty of rape as charged. If you believe the evidence of the Accused, then you must find him not guilty of Rape.

111. Complainant said that when the accused entered her house in April 2013, He covered her face with his hands, slapped on her face and punched her. If you rely on her evidence, then you may find the accused guilty of Common Assault.

112. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.

113. If you accept the prosecutions' version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of accused's guilt of each charge you must find him guilty of each charge. You have to consider evidence against each charge separately. The fact that accused is guilty of one charge does not mean that he is guilty of other charges as well.

114. If you do not accept the prosecutions' version of events, and you are not satisfied beyond reasonable doubt, so that you are not sure of the accused's guilt, you must find him not guilty as charged.

Your possible opinions are as follows:

(i) First count of Abduction Accused 'Guilty' or 'Not Guilty'?

(ii) Second count of Rape Accused 'Guilty' or 'Not Guilty'?

(iii) Third count of Rape Accused 'Guilty' or 'Not Guilty'?

(iv) Fourth Count of Common Assault Accused 'Guilty' or 'Not Guilty'?

115. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Any re-directions?

Aruna Aluthge
Judge

At Lautoka
On 1st April, 2016

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