State v Prasad - Judgment [2016] FJHC 715; HAC77.2016 (5 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 077 of 2016

STATE

v.

1. NAVINDRA PRASAD
2. SHAILENDRA SINGH
3. RAVIND PRASAD
4. AVINESH KUMAR

Counsel: Ms. S. Serukai for State
1^st Accused – In Person
Ms. N. Mishra for 2^nd Accused
Ms. S. Prakash for 3^rd Accused
Ms. N. Mishra for 4^th Accused
Dates of Hearing: 1st, 2^nd and 3^rd August 2016
Date of Summing Up: 4^th August 2016
Date of Judgment: 5^th August 2016

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as [‘A.D’]

1. The accused 1 – 4 are charged with Rape in counts 1 – 4 respectively.

FIRST COUNT

(Representative Count)

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NAVINDRA PRASAD between the 1^st day of January 2013 and the 30^th of November 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

SECOND COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SHAILENDRA SINGH between the 1^st day of November 2014 and the 30^th day of November 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

THIRD COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

RAVIND PRASAD between the 1^st day of December 2014 and the 31^st day of December 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

FOURTH COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AVINESH KUMAR between the 1^st day of December 2014 and the 31^st day of December 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

2. After trial the 3 assessors unanimously opined that 1^st, 2^nd, 3^rd and 4^th accuseds are guilty of counts 1, 2, 3 and 4 respectively.
   
3. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
4. The prosecution called two witnesses. They were the complainant ‘A.D.’ and the Police Investigating Officer. All accused persons chose to remain silent.
   
5. It is undisputed that the complainant was below 16 years old at the time relevant to the charges. It is also not in dispute that the complainant’s father was in jail and that the complainant was staying at her uncle 2^nd accused’s house. However, the position taken by the 2^nd and 4^th accused in cross examination was that the complainant never came back to 2^nd accused Shailendra’s house in Sawani after she ran away on 28/11/2014 after going to school.
   
6. The evidence of the complainant was that the 1^st accused came to Shailendra’s house and sent the two sisters out to wash his taxi. Thereafter he had closed the door, removed her clothes and had inserted his private part into her private part. He also had threatened her not to tell anyone. She said that she started bleeding and that she cried. It had happened in 2014 when she was at Shailendra’s (2^nd accused) house.
   
7. On a different occasion the 2nd accused Shailendra who is her mother’s brother also had done the same thing to her. He had asked her to stay back without going to school to look after the visitors. He had come home by 9am and had pushed her on to the bed and had inserted his private part into her private part. He also had threatened her not to tell anyone. He had told her that “when Navindra did this thing to you, you kept quiet”. Complainant said that Shailendra is her mother’s brother and Navindra is her aunt’s husband.
   
8. During the school holidays the 3^rd accused had come home to take some water. He had dragged her, made her fall down in the kitchen and had put his private part into hers. He had threatened her not to tell anyone.
   
9. In December 2014 the 4^th accused who is her mother’s first husband’s son had been sleeping in the same room with her. In the night he had come on top of her, threatened her and had put his private part into her private part.
   
10. The complainant in her evidence said that what she meant by her private part was the place where girls have sex. It is obvious and made out in evidence that she referred to her vagina as her private part and referred to the accused’s penis as each accused persons’ private part.
11. The complainant had finally run away from 1^st accused’s house to her school friend’s place in Sasawira.
    
12. Her evidence was that although she told her mother about what these accused persons did, her mother told her not to report to the police as all of them would go to jail. Although the complainant’s mother was not called to give evidence, this court has no reason to disbelieve the evidence of the complainant that she told her mother about what accused persons did to her. Obviously her mother would not have wanted her brother who is the 2^nd accused and the other accused persons to be in trouble. Finally she had gone to her father and had told him about this, and on father’s instructions she had reported the matter to police.
    
13. The complaint to police was therefore made about 2 years after the incident. I find that the complainant clearly explained the delay in complaining, which is justified. The complainant was sheltered by the uncle (2^nd accused), as her father was in jail. Obviously her mother had not sheltered her.
    
14. The complainant was consistent in her evidence and I have no reason to disbelieve her evidence. Also no reason was evident as to why she would make false allegations against the four accused persons.
    
15. The four accused persons have taken advantage of their authority over the complainant and her vulnerability. Complainant was below 16 years of age when the incidents happened. The complainant had made a report to Nakasi Police Station when she ran away for the 1^st time with her school friend in Sasawira. She had only complained that Shailendra was troubling her. She said that she wanted to tell her parents first. After telling her father, she had reported about the rape. It is understood that to make a complaint of this nature for a complainant of this age against the person who is looking after her, providing her shelter, she should have some strength and support from an adult from whom she can depend on.
    
16. The complainant was not sure about the exact dates that she was raped by the accused persons. However, I find that she was truthful and forthright when she said that all four accused persons forcefully had sexual intercourse with her, although she was inaccurate of the dates. The defence taken by all four accused persons by cross examining the complainant was, total denial of sexual intercourse. Evidence did not reveal that the accused persons did not have access to the complainant. I do not find that any of the accused persons were prejudiced in their defence by the fact that the charges did not give the specific dates of offence and also by the evidence of the complainant that she was not sure of the exact dates.
    
17. I find that the complainant was truthful when she said that all 4 accused persons inserted their private parts into her private part, and that she meant sexual intercourse by that. I also find that those acts were committed by the accused persons without her consent and that they knew that she was not consenting. I find the complainant a credible and reliable witness. I accept her evidence and find that the prosecution has proven the counts no. 1, 2, 3 and 4 against the 1^st, 2^nd, 3^rd and 4^th accused persons respectively, beyond reasonable doubt.
    
18. It was open to the assessors to find the accused persons guilty of the respective counts against them. The unanimous opinion of the assessors is not perverse and I agree with them.
    
19. Therefore I find the 1^st accused guilty of count no. 1 and convict him accordingly. I find the 2^nd accused guilty of count no. 2 and convict him accordingly. I find the 3^rd accused guilty on count no. 3 and convict him accordingly. I find the 4^th accused guilty on count no. 4 and convict him accordingly.
    

Priyantha Fernando

Judge

At Suva
05^th August 2016

Solicitors
Office of the Director of Public Prosecutions for the State.
1^st Accused In Person
Office of Legal Aid Commission for 2^nd, 3^rd and 4^th Accused