State v Bilash - Judgment [2016] FJHC 497; HAC149.2014 (30 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 149 of 2014

STATE

V

NITENDRA PRASAD BILASH

Counsel : Mr. M. Vosawale and Ms. S. Sharma for State
Ms. S. Narayan and Ms. M. Chandfor the Accused
Dates of Hearing : 23^rd May to 25^th May 2016
Date of Summing Up: 26^th May 2016
Date of Judgment : 30^th May 2016

JUDGMENT

1. The accused is charged with the following offence;
   

Statement of offence

Rape: Contrary to Section 207 (1) and (2)(b) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

NITENDRA PRASAD BILASH on the 22^nd day of July 2013, at Nabua, in the Central Division penetrated the vagina of Achal Prasad with his fingers without her consent.

2. The assessors have returned with a unanimous opinion that the accused is not guilty of the above offence.
   
3. I direct myself in accordance with the summing up delivered to the assessorson26^th May 2016 and the evidence adduced during the trial.
4. To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;
   1. the accused;
   2. penetrated the vagina of Achal Prasad to any extent with his fingers;
   100. without the consent of Achal Prasad;
   4. accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting
      

The prosecution case

5. The prosecution led the evidence of Achal Prasad (“complainant”), her mother, the doctor who examined the complainant on the day after the alleged incident and two police officers.
   
6. In brief, the complainant said that she went to the accused’s house on 22/07/2013, to look after the accused’s daughter, Neha who did not go to school that day. After the accused returned home on that day between 4.00pm and 5.00pm, Neha went to take a shower. Then the accused sat beside her, pulled her pants and poked two of his fingers inside her vagina. She tried to push the accused when he was taking off her clothes but she couldn’t. She said it was painful when he poked the two fingers inside her vagina. She wanted to free herself from the accused; she was pushing the accused and was telling him not to do it. She told her mother about the incident after she went home that day and when she saw blood in her underwear.
   
7. Defence tendered the medical report of the complainant during cross examination to highlight that there was a bruise noted on her left breast according to the medical report and that she had told the doctor that the accused kissed her breasts but she had not mentioned these facts in her statement to the police. It was also suggested to her that accused’s daughter did not take a bath while she was at the accused’s house on the day in question; that the injuries noted in the medical report are self-inflicted; and that she had told a tenant of the accused that she will withdraw the complaint if she is given $10,000 by the accused. She denied these suggestions. In re-examination she said she did not inform the police about the bruise and that the accused kissed her breast because she was scared and ashamed.
   
8. Complainant’s mother said in her evidence that on 22/07/2013, the accused called her overthe phone and told her to send the complainant to his house to look after his daughter. She took the complainant to the accused’s house around 9.00am. When she went to the accused’s house around 5.00pm to take the complainant home she noted that the complainant is worried for something. She asked the complainant what happened and the complainant told her that she will tell after they go home.They reached home, the complainant went to the washroom and thereafter the complainant told her that there is blood in her panty. The complainant then told her that when the complainant was sitting on a settee, the accused asked her whether she has a boyfriend and the complainant said ‘no’; the accused pushed the complainant on the settee while Neha was taking a shower, pulled her blue jeans and her panty and poked his hand on her private part.
   
9. Doctor Guevara who examined the complainant on the day after the incident around 11.55am said that the complainant was ‘teary’ at times when telling her story. He had noted a tear in the hymen in the 7 o’clock region with a clot of blood, and also noted a small bruise on the left breast. In his opinion a penis, finger or a foreign object which penetrates the vagina vigorously can cause the injuries he had noted on the vagina. To his knowledge, the injuries he noted were recent having occurred within the last 24 to 48 hours. He said there is always a possibility that this type of injuries can be self-inflicted, but it would be very painful.
   
10. The two police officers were called by the prosecution on the request of the defence counsel. They were cross examined on the delay in conducting the interview of the accused and the delay in charging the accused. It was suggested to the police officer who was the 4^th prosecution witness that the police decided to dismiss the report because they did not find any weight on the complaint. The witness denied this suggestion. He also said that he made phone calls to the accused several times and he gave time to the accused as the accused was working in Suva City Council.
    

The defence case

11. The accused opted to give evidence and to call witnesses. In his evidence, the accused denied the allegation. According to him, on the day in question, he came home around 4.30pm, he kept his bag in the dining room, took the leftover food from the bag and had that food while watching TV in the sitting room. The complainant was sitting on the settee behind him and his daughter was lying down on the settee on his left side. He took about 15 minutes to finish eating and went to the kitchen to wash his hands. He came back and sat on the same settee he was sitting before and was there until the complainant’s mother came. He said his daughter did not take a shower while the complainant was there. He was taken to the Vatuwaqa police post the same day but was sent home because there was no transport for him to be taken to the Nabua police station. He constantly followed up with the police about the matter. On one occasion, one Sunil in the Nabua Police Station showed him the complainant’s medical report and her statement and he said the two were not matching. He was interviewed under caution sometimes in September 2013, and was charged in May 2014.
    
12. Accused’s daughter took the stand next. She was 10 years old at the time of the incident. She said, on the day in question she did not go to school because she was sick and stayed at home with the complainant. She said the accused arrived home at half past four that day, he put his bag on the dining table, he took out his food and he ate while sitting on the small settee in the sitting room. They continued to watch movies until the complainant left with her mother. She said the complainant went to the mother as soon as the complainant saw her. She said the complainant’s behaviour was normal when the mother came. On that day, she had her shower after the complainant left and she did not take a shower when the complainant was there.
    
13. During cross examination she saidwhen the accused came home that day she was still enjoying the movie she was watching with the complainant. She admitted that on that day she did not see the accused put his bag in the dining room and take out his food.She said the accused generally does that. She said the accused was eating while the complainant’s mother came. She denied that she bathed before the complainant went away. When she was asked “on that day whilst you had your bath, you would not know what your father did to Achal?”;she looked down took some time and then said “I did not have my shower at that time”.
    
14. The final defence witness said that the complainant always wear short and tight dresses. According to her the last time she met the complainant and her mother was two weeks after the incident and during that encounter ‘they’ told her that they are willing to withdraw the complaint if the accused pays $10,000. She said she told this to the accused just last week.

Analysis

15. I observed the demeanour of the complainant when she gave evidence. I did not note any attempt by her toexaggerate. In my view, she gave honest answers.
    
16. The main inconsistency in her evidence highlighted by the defence was withregard to the complainant not mentioning about the bruise on her left breast and that the accused kissed her breast to the police.She accepted during cross-examination that she did not tell everything to the police, but she told everything to her mother. She did not say she lied to the police. The fact that the complainant did not mention about the bruise on her breast and about the accused kissing her breast is not prejudicial to the accused since the accused is not charged based on the said facts. On the otherhand, the position taken by the defence counsel was that the said injury to the left breast was not there on 22/07/2013 when the complainant went to the policestation and it was self-inflicted before the medical examination. According to the defence counsel that was the reason why the complainant did not mention about the bruise on her breast and about the accused kissing her breast in her statementto the police.
    
17. It is pertinent to note that the complainant did not mention about the accused kissing her breast even during her evidence in chief. It was the defence counsel who brought this issue up by tendering the medical report as a defence exhibit. I do not find any merit in the aforementioned contention of the defence counsel regarding this inconsistency. I accept the complainant’s explanation that she did not mention regarding her breast to the police because she was scared and ashamed bearing in mind that she was also 16 years old at the relevant time.
    
18. I accept the evidence of the second prosecution witness, Reena Prasad that the complainant did complain to her about the alleged offence on 22/07/2013. I find that complaint was a prompt complaint.
    
19. I would disregard the notes in the medical report DE1 which indicates what the complainant had told the third prosecution witness, Doctor Guevara which amounts to previous consistent statements made out of court. For the reasons I have given earlier in this judgment, I do not consider that the omission highlighted based on DE1 regarding the bruise found on the left breast affects the credibility of the complainant.
    
20. I observed the demeanour and deportment of the accused when he gave evidence. Considering all the evidence led in this case, I cannot accept his evidence when he said that he did not penetrate the complainant’s vagina with his fingers on 22/07/2013.
    
21. I note that the accused said in his evidence that one police officer showed the complainant’s statement and the complainant’s medical report to him at the Nabua police station and discussed with him regarding the case on a particular day,beforehe was interviewed under caution in September 2013. This does not appearto be the usual manner the police would deal with a suspect. However, this is also not a matter which is relevant to decide whether the accused is guilty or not guilty of the offence charged.
    
22. Witness Neha,the daughter of the accused testified that she was with the complainant and the accused till the complainant left the house on 22/07/2013 and that she did not take a shower while the complainant was there. I have carefully observed the demeanour of this witness when she gave her evidence. I have noted the following with regard to the last three questions during her cross examination;
    

Q: Ms.Neha, that day you had your bath before Achal left?

A: No. [I note that the witness looked at the accused, looked at the bench and looked down immediately after she gave that answer]

Q: From the bathroom, when you close the door, you cannot see what’s happening in the sitting room?

A: yes.

Q: On that day whilst you had your bath, you would not know what your father did to Achal?

A: [Witness looks down, takes sometime] I did not have my shower at that time.

23. Witness Neha who is 13 years old now and was 10 years old at the time of the alleged incident, confidently said during her evidence in chief that “My father arrived home at half past four. When my father arrived, myself and Achal were watching the movies. After my father came, he put his bag on the dining table, he took out his food and he started to eat. My father had the meal on the small settee in front”. However, during cross examination, she admitted that,on the day in question she was fully concentrating on what was happening in the movie when her father arrived and that she did not see her father putting his bag on the dining table and taking out the food as she cannot see the dining room from the sitting room. Later she said that her father usually does that. According to Witness Neha, the accused was still eating when the complainant’s mother came to take the complainant but according to the accused’s evidence, by the time the complainant’s mother came he had finished eating and was watching TV.
    
24. Considering all the evidence led in this case and the demeanour and deportment of Witness Neha when she gave evidence, I cannot accept her account of what happened from the time the accused came home on the day in question till the complainant left with her mother.
    
25. The third witness for the defence, Witness Lata, mainly testified on the following three matters;
    1. The complainant and her mother told her that they are willing to withdraw the complaint if the accused pays $10,000. This happened two weeks after the incident and this was the last time she met them.
    2. The way the complainant dress is not good as she always wear “small cloths, tight fitting, tights”.
    100. The complainant is seen on the road, at the bus stop and shops. She said “they are there to borrow money, groceries, plenty of times they came to me.”
         
26. The defence counsel attempted to paint the picture that the complainant was poor, she wears short and tight fittings and she made this complaint in order to claim money from the accused. The unanimous opinion of the assessors that the accused is not guilty, shows that the defence counsel has in fact been successful in painting that picture in the minds of assessors. In my view that picture had prejudiced the assessors’ minds against the complainant and the assessors failed to comprehend that those factors are not relevant in deciding whether the accused is guilty or not guilty of the offence charged.
    
27. It is pertinent to note that the defence counsel did not question the complainant’s mother with regard to the aforementioned three points orat least on point (a) and (c), to give her an opportunity to respond. During the cross examination of the complainant, it was suggested to her that the complainant told Witness Lata a few months ago (and not two weeks after the incident as testified by Witness Lata) that she would withdraw the complaint if she is paid $10,000 and the complainant denied this. There is a clear discrepancy between Witness Lata’s version and the version suggested by the defence counsel to the complainant.
    
28. It is clear that Witness Lata was called by the defence not for any other purpose but to attack the credibility of the complainant.The complainant was not cross examined on points (b) and (c) above. The defence counsel did not provide the complainant an opportunity to respond to the allegations she raised through Witness Lata with regard to way the complainant dress and on whether the complainant and her mother used to borrow money from others. On the other hand, what is the relevance of the way the complainant dress, to this case? Was the defence implying that the accused may have committed the offence because of the way the complainant dress herself? Or was the defence implying that complainant was not a credible witness because of the way she dresses?
    
29. Whether or not the complainant used to wear short and tight fitting dresses has no relevance to this case in any manner whatsoever. The complainant or anyone for that matter has the right and freedom to decide what and how to dress, how to talk and how to walk. A person’s credibility cannot and will not be judged in a court of law by his or her dress.Further, the fact whether or not the complainant used to borrow money from others along with her mother also has no relevance to this case.
    
30. With regard to the alleged settlement proposed by the complainant and her mother as testified by Witness Lata; it is clear that this alleged proposal was not made to the accused by either of them for the last three years as there was no evidence from the accused to that effect. The complainant who was 16 years old at the relevant time denied this allegation and the court did not hear from the complainant’s mother with regard to this alleged proposal as the defence counsel opted not to cross examine her regarding same. However, even if such conversation did take place two weeks after the incident under whatever circumstances, there is no evidence that the complainant or her mother took any steps to pursue such a settlement for the past three years. Nevertheless, such conversation does not in any way suggest that the allegation against the accused is false.
    
31. Therefore, I hold that the three matters outlined in paragraph 25 above are not relevant to this case.

Conclusion

32. Considering all the evidence led in this case, I find that the complainant was a credible witness. Her account of what happened to her on 22/07/2013 at the accused’s house is reliable. I hold that the complainant’s credibility is strengthened in view of the recent complaint she made to her mother, the second prosecution witness.
    
33. I accept the complainant’s evidence when she said that on 22/07/2013 the accused poked his fingers inside her vagina and that she tried to free her from him by pushing him and that she told the accused not to do it.
    
34. Therefore, I am satisfied beyond reasonable doubt that on 22/07/2013, the accused penetrated the complainant’s vagina withhis fingers without the complainant’s consent and he knew or believed that she was not consenting.
    
35. In light of the above, I am unable to agree with the unanimous opinion of the assessors that the accused is not guilty of rape.
    
36. I find the accused guilty for the offence of rape as charged and convict him accordingly.
    

Vinsent S. PereraJUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Divendra Lawyers, Suva.