State v Chand [2020] FJHC 164; HAC056.2019 (19 February 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 56 of 2019

STATE

vs.

SHIU CHAND

Counsel: Mr. S. Sharma for the State
Mr. SP. Gosaiy for Accused

Date of Hearing: 10^th, 11^th, 12^th and 13^th February 2020
Date of Closing Submission: 14^th February 2020
Date of Summing Up: 18^th February 2020
Date of Judgment: 19^th February 2020

JUDGMENT

1. The prosecution has charged the accused with two counts of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act, one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act, one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, and two counts of Assault Causing Actual Bodily Harm, contrary to section 275 of the Crimes Act. The particulars of the offences are that:
   

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division penetrated the vagina of SWASTIKA DEVI with his tongue, without her consent.

COUNT TWO

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division penetrated the vagina of SWASTIKA DEVI with his finger, without her consent.

COUNT THREE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division penetrated the vagina of SWASTIKA DEVI with his penis, without her consent.

COUNT FOUR

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division unlawfully and indecently assaulted SWASTIKA DEVI by sucking her breast.

COUNT FIVE

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division assaulted SWASTIKA DEVI thereby causing actual bodily harm.

COUNT SIX

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

SHIU CHAND on the 18^th day of January 2019 at Kinoya, in the Central Division assaulted SWASTIKA DEVI thereby causing actual bodily harm.

2. The hearing commenced on the 10th of February 2020 and concluded on the 13th of February 2020. The prosecution adduced the evidence of five witnesses, including the complainant. The defence exercised the right to remain silent; hence, no evidence was presented by the defence.
3. The learned counsel for the prosecution and the defence then made their respective closing addresses. Subsequently, I delivered the summing up. The three assessors in their unanimous opinions found the accused not guilty of count one, two, three, four, and six of the information. Two assessors found the accused guilty of count five, while one assessor found the accused not guilty of count five.
   
4. Taken into consideration the evidence presented during the hearing, the closing addresses of the counsel, the summing up, and the opinions of the assessors, I now proceed to pronounce the judgment as follows.
   
5. The prosecution alleges the accused had picked the complainant in his car on the early morning of the 18th of January 2019. He then took her to his house. On his way, he had slapped the complainant on her chin. At his home, the accused had tried to have sexual intercourse with her, which she refused. He had then assaulted her by punching on her face and head. Afterward, the accused took the complainant to the car and forced her to lean on the back seat. After that, the accused kissed her lips and breast. Subsequently, he had forcefully penetrated the vagina of the complainant with his finger and then tongue. Afterward, the accused penetrated the vagina of the complainant with his penis without her consent.
   
6. The accused exercised his right to remain silent. During the cross-examination of the witnesses of the prosecution, especially the complainant, the defence tries to establish the account given by the complainant is not reliable, credible, and probable.
   
7. The first element of all the six offences is the identity of the perpetrator. The accused had admitted in the admitted facts he was at the house of Arinesh on the evening of the 17th of January 2019. He had been drinking beer with the complainant and other family members. Hence, the identity of the accused is not a disputed issue between the prosecution and the defence.
   
8. The complainant said the accused first penetrated her vagina with his fingers and then with his tongue. Afterward, he penetrated her vagina with his penis. During the penetrations, the upper body of the complainant was leaning against the door of the car. The rest of her body was on the seat. The accused had spread her legs. There was no resistance from the complainant. The complainant said that she did not move and stayed still. The penial penetration lasted for about 3 to 4 minutes.
   
9. Doctor Alanieta, explaining her findings, said that she found clear vaginal secretion. There was no blood found in the vagina. The vagina has a lot of glands. The glands generate secretion if there is a penetration to the vagina. Doctor Alanieta further explained that the vagina is a smooth muscle; therefore, it can expand and contract. Given the facts, the complainant already had vaginal childbirth and sexually active, her vaginal muscles could accommodate the penetration of penis or fingers without getting any laceration in her vagina.
   
10. The learned counsel for the defence asked Doctor Alanieta, is it possible to have no laceration or any sort of marks left on the vagina, if a penis or fingers penetrated the vagina of the complainant for 2 to 3 minutes. Doctor Alanieta answered, stating the vagina is a smooth muscle with the ability to expand and contract. Hence, it can accommodate the penetration of fingers or the penis without necessarily getting injured.
    
11. The defence did not challenge the evidence of the complainant regarding the manner the accused penetrated her vagina with his fingers, tongue, and penis. Neither the defence suggested to the complainant that such incidents never took place.
    
12. The evidence of Doctor Alanieta establishes there was a penetration into the vagina of the complainant. The complainant states the accused penetrated her vagina with his fingers, tongue, and then with his penis. Since she did not resist and stayed still, there is no evidence of forceful and aggressive penetration of fingers or penis of the accused. I find the evidence of Doctor Alanieta and the complainant in respect of the issue of penetration are reliable, credible, and probable.
    
13. The next issue is consent. Consent is a state of mind that can take many forms from willing enthusiasm to reluctant agreement. The mere fact the complainant drank beer with the accused in the car and then went to the house and drank more beer in the bedroom, one could not assume the complainant consented to have sexual activities with the accused. The complainant explained that the accused forced her to drink beer in the car and also in the bedroom. She had to drink it as she thought he would assault her again if she refuses to drink. The complainant thought it would be safer to go inside the house, than staying in the car as the mother of the accused was in the house.
    
14. The learned counsel for the defence cross-examined the complainant, asking why she did not get off the car at the shop. The complainant said the accused had not made any sexual advances toward her in the car. He slapped her because she tried to get off the car and approach the police vehicle. By the time the accused slapped the complainant, the police vehicle had gone. Accordingly, the complainant had no reason to suspect the motive of the accused when he stopped to buy beer at the shop.
    
15. The accused refused to take her to the nearest police station. Instead, the accused took her to his home as his mother was there. He told her that he could sleep on the couch while she can sleep on the bed. The complainant realized the motive of the accused only when he came to the bedroom and locked the door. As per the evidence of the complainant, Pritika Devi, and Salveen, there were no undue gestures or sexual advancements by the accused to the complainant during the drinking sessions. They all were engaged in usual conversations during the drinking session. Hence, I accept the evidence of the complainant, stating that she realized the motive of the accused only when he came and locked the door of the bedroom.
    
16. The complainant pushed the accused away when he tried to get on top of her. She had used all of her strength to push him away. The accused then got angry and started to punch her on her face and head. The complainant then shouted for help from the mother of the accused.
    
17. Doctor Alanieta found bruising on the left side chin of the complainant during the medical examination. They were reddish-purple. In her opinion, the bruising would have sustained within the last twelve hours. The evidence of Doctor Alanieta confirms some form of blunt force had applied on the skin of the chin of the complainant in the last twelve hours before the medical examination. Accordingly, I accept the evidence of the complainant, where she said the accused punched on her face and head in the bedroom.
    
18. The complainant thought the accused was going to take her home when he asked her to move to the back seat of the car. However, she soon realized his motive when he also moved to the back seat right after she moved. The complainant had no opportunity to escape as the accused was right next to her on the back seat. The complainant said that she did not resist or fight back as she was tired, hurt, and had no strength to fight back. She thought the only way of getting back home was to let the accused to do what he wanted. Hence, she stayed still and did not make any resistance when the accused penetrated her vagina with his fingers, tongue, and penis.
    
19. The learned counsel for the defence emphasized in his closing address, the submission of the complainant without any resistance to the accused may have led him to believe the complainant was consenting. However, the incident that took place in the bedroom is sufficient for him to understand the complainant was not consenting. If the accused claims that he believed the complainant was consenting, I find such a belief is not reasonable under the circumstances that this incident took place.
    
20. Accordingly, I am satisfied that the complainant had not given her consent to the accused to penetrate her vagina with his fingers, tongue, and penis. Moreover, I am satisfied the accused knew or believed, or reckless that the complainant was not consenting for him to penetrate her vagina with his fingers, tongue, the penis.
    
21. The complainant said the accused slapped her on the left side of her chin. However, the statement she made to the police states the accused slapped on the right side of her chin. The complainant had told everything to the police officer who recorded her statement. She was stressed, exhausted, and hurt when she made the statement to the police. Given the fact the difficult night she had to encounter before she made the statement, I find this inconsistency of her evidence with the statement she made to the police has no adverse effect on the reliability and credibility of her evidence.
    
22. Section 2 of the Crimes Act defines the word "harm" as:
    

“"harm" means any bodily hurt, disease or disorder (including harm to a person's mental health) whether permanent or temporary and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time);”

23. The complainant, in her evidence, explicitly stated that she felt pain when the accused slapped and punched on her face and head. Hence, there is evidence to establish the slapping, and the punching had caused bodily harm to the complainant.
    
24. I observed the manner and the way the complainant gave evidence. She was straight, forthright, and coherence. During the cross-examination, the complainant maintained the same position that she explained in her evidence in chief. There are no adverse inaccuracies, errors, and mistakes in her evidence. Neither, I find any intentional lies nor intentional attempts to deceive in her evidence. As a result, I find the evidence of the complainant is reliable, credible, probable, and truthful.
    
25. Accordingly, I find the prosecution has proven beyond a reasonable doubt the accused has committed these crimes as explained under count 1 to 6 in the information. Hence, I have cogent reasons to disagree with the opinion of the three assessors with respect to count one, two, three, four, and six. Moreover, I agree with the majority opinion of guilty given by the two assessors for count five.
    
26. In conclusion, I find the accused guilty of two counts of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act, one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act, one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, and two counts of Assault Causing Actual Bodily Harm, contrary to Section275 of the Crimes Act and convicted for the same accordingly.
    

R.D.R.T. Rajasinghe

Judge

At Suva
19^th February 2020

Solicitors
Office of the Director of Public Prosecutions for the State.
Jitendra Reddy Lawyers for the Defence.