State v Chand [2019] FJHC 485; HAC98.2018 (24 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 98 of 2018

[CRIMINAL JURISDICTION]

STATE

V

RAJESH CHAND

Counsel : Mr. I. Rakaria for the State

Mr. A. K. Singh with Mr. P. R. Sharma for the Accused
Hearing on : 20 - 23 May 2019
Summing up on : 23 May 2019
Judgment on : 24 May 2019
[The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “SK”. No newspaper report or radio broadcast of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of the said complainant.]

JUDGMENT

1. The accused is charged with the following offences;
   

COUNT ONE

Statement of Offence

Rape: contrary to section 207(1) and (2)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

RAJESH CHAND, on the 28^th day of January, 2018 in Nausori, in the Central Division, penetrated the anus of SK, with his penis without his consent.

COUNT TWO

(Representative Count)

Statement of Offence

Rape: contrary to section 207(1) and (2)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

RAJESH CHAND, between the 29^th day of January and 30^th day of January, 2018, in Nausori, in the Central Division, penetrated the anus of SK, with his penis without his consent.

2. The assessors have returned with the unanimous opinion that the accused is guilty of both counts.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 23/05/19 and the evidence adduced during the trial.
   
4. The prosecution called five witnesses including the complainant. The accused gave evidence in his defence.
   
5. The complainant gave accounts of two incidents where he said the accused inserted the accused’s penis in his anus. Both incidents were alleged to have taken place inside the video shop the accused was working in. According to the complainant the first incident took place on 28/01/18 and the second incident on either 29/01/18 or 30/01/18. The complainant said that he took a phone when he was walking out from the video shop after the second incident not knowing that it was the accused’s phone. The accused then comes to the complainant’s school looking for the complainant on 02/02/18 and the complainant admits that he took the phone when the vice principal of the school questions the complainant in front of the assistant principal (PW4) and the accused.
6. The complainant decides to make a complaint with regard to the sexual encounter with the accused after his school principal (PW2) questioned him about stealing the phone, on the following Monday which was 05/02/18. The principal was on leave on 02/02/18. The complainant had been medically examined on 05/02/18 and according to the medical report which was tendered as PE1, the doctor was told about one incident only and that was about the incident on 28/01/18.
   
7. According to the accused he did went on top of the complainant on the request of the complainant to insert his (accused) penis inside the complainant’s anus, but he was unable to insert it because he is unable to have erections due to injuries he had sustained in an accident more than 10 years ago. However, the accused said that this incident happened on 21/01/18 and not on 28/01/18. The accused denies the allegation in relation to the second count.
   
8. The third prosecution witness (PW3) was the doctor who had examined the complainant on 05/02/18. However, her opinion was not helpful as far as the two charges in this case are concerned. Though she said she noted an injury on the complainant’s anal area, she did not give an opinion as to whether the injury was consistent with penetration or not. Moreover, though she said that the injury was fresh and recent she admitted that she cannot give an opinion on the age of the injury.
   
9. The fifth prosecution witness (PW5) was the owner of the video shop which is the place of offence in relation to both charges. According to PW5, it was clear that the phone was taken by the complainant on Thursday, 01/02/18. He also said that the complainant came to his shop on Monday (29^th January), Tuesday (30^th January), Wednesday (31^st January) and on Thursday (01^st February). Though PW5 was a prosecution witness, it was clear that certain evidence given by the complainant and PW5 were not consistent.
   
10. With regard to the first count, considering all the evidence led in the case, I find that the incident relevant to that count may have taken place on 21/01/18 as the accused claimed. The complainant himself admitted that it could be 21/01/18 and not 28/01/18. However, such variance is not material.
    
11. In relation to the first count, the accused challenges penetration. But he admits that he was on top of the complainant and that his penis touched the complainant’s anus. His position is that not only the complainant consented to what took place between him and the complainant, but it was the complainant who requested him to penetrate the complainant’s anus though he could not do it.
    
12. Given the accused’s own evidence and his demeanour while he was giving evidence, I find his version that he could not penetrate the complainant’s anus because he is unable to have erections to be improbable. I do not find it logical for a person who cannot have erections for 10 years to make an attempt to penetrate the anus of another person simply because that person makes such request. I accept the complainant’s evidence in relation to the first count that the accused penetrated the complainant’s anus with the accused’s penis.
    
13. The question is whether the accused penetrated the complainant’s anus without the complainant’s consent. I have carefully considered the evidence given by the complainant. Given the account the complainant gave in relation to the incident relevant to the first count, his demeanour while he was answering the questions and the inconsistencies that were highlighted between the statement he made to the police and the evidence given in court, I have a reasonable doubt in relation to the element involving consent. That is, whether it is proved beyond reasonable doubt that the accused penetrated the complainant’s anus without the complainant’s consent.
    
14. In my view, the fifth prosecution witness was a credible and a reliable witness who said that the complainant came to meet the accused on 29/01/18, 30/01/18, 31/01/18 and on 01/02/18. Even according to the complainant, he went back to the video shop either on 29/01/18 or on 30/01/18 and that is when the second incident that is in relation to the second count took place. The question is, if the accused did such an act (the act relevant to the first count), without the complainant’s consent, why would the complainant go to that same video shop to meet the accused once again? Especially where the accused had penetrated his anus threatening him that the accused will get his friends at the billiard shop to hit him?
    
15. The complainant’s evidence was that he went with the accused to the video shop on 29^th or 30^th because the accused told him that the accused’s boss is there. Yet, the question is; what was the reason for the complainant to go back again to the same place which he was allegedly raped, with the same person who allegedly raped him? The complainant did not offer any reason in his evidence in this regard. This conduct of the complainant throws further doubt on the issue of consent.
    
16. Therefore, I find that the prosecution has failed to establish the offence of rape beyond reasonable doubt, in relation to the first count.
    
17. Now the question is, whether the accused is guilty of defilement.
    
18. It is an admitted fact that the complainant was 13 years and 09 months old at the time of the alleged offence. Therefore, the fact that the complainant was between the age of 13 years and 16 years at the material time is established.
    
19. The accused said in his evidence that the complainant had told him when he met the complainant before the first incident, that the complainant is 16 years old. Accordingly, the accused claims that he had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years at the material time. Given the features and the appearance of the complainant when he gave evidence, and the fact that the accused very well knew that the complainant was a schoolboy at the material time, I cannot accept this contention of the accused to be valid.
    
20. In the circumstances, I find that the elements of the alternative offence of defilement have been proven beyond reasonable doubt based on the evidence presented in relation to the first count.
    
21. Now I would turn to the second count.
    
22. The complainant is not sure whether the incident relevant to the second count (“second incident”) took place on 29/01/18 or on 30/01/18. However, he is certain that he took the accused’s phone (regardless of his claim that he did not know that at the time he took it) on the same day this ‘second incident’ took place. The fifth prosecution witness clearly says that this phone was taken on 01/02/18 which was a Thursday. The fourth prosecution witness who was there when the complainant admitted to the vice principal that he took the accused’s phone also admitted during cross-examination that, according to what he (PW4) heard, the phone was taken on Thursday.
23. According to the complainant, the accused penetrated his anus for the second time when PW5 had gone to have tea. When the accused saw PW5 coming back to the shop after having tea, the accused told him to leave and then he took the phone while he was leaving.
    
24. But according to PW5, the complainant left his shop while the accused was not in the shop as the accused was sent by him to deliver a movie to another shop. These two versions presented by the prosecution cannot be reconciled. Further, as indicated in PE1, only the date 28/01/18 was mentioned to the doctor indicating that there was only one incident. Given the totality of the evidence presented, I do not find the complainant’s evidence in relation to the second count as credible and reliable. In my judgment, the prosecution has failed to prove the second count.
    
25. In view of the foregoing reasons, I am unable to accept the opinion of the assessors.
    
26. I find the accused not guilty of the first count, but I find him guilty of the alternative offence of defilement. I find the accused not guilty of the second count and I acquit him accordingly.
    
27. I hereby convict the accused for the offence of defilement contrary to section 215 of the Crimes Act.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State.
A. K. Singh Lawyers, Suva for the Accused.