State v Reddy [2020] FJHC 575; HAC75.2019 (27 July 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 75 of 2019

STATE

V

VINAY CHANDRA REDDY

Counsel : Mr. A. Kumar for the State.

: Ms. J. Singh for the Accused.

Dates of Hearing : 22 July, 2020
Closing Speeches : 23 July, 2020
Date of Summing Up : 24 July, 2020
Date of Judgment : 27 July, 2020

JUDGMENT

(The name of the complainant is suppressed she will be referred to as “VR”)

1. The Director of Public Prosecutions charged the accused by filing the following information:

Statement of Offence

RAPE: Contrary to section 207 (1) and 2 (a) and (3) of the Crimes Act 2009.

Particulars of Offence

VINAY CHANDRA REDDY between the 1^st day of February, 2019 and the 13^th day of March, 2019 at Caboni Settlement, Tavua in the Western Division, had unlawful carnal knowledge of “VR”, a child under the age of 13 years.

2. The three assessors returned with a unanimous opinion that the accused was not guilty of the offence of rape as charged.

3. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at trial.

4. The prosecution called two witnesses and the accused exercised his right to remain silent and did not call any witness.

5. The complainant informed the court that in the year 2019 she was 11 years of age on one occasion between 1^st February, and 13^th March, 2019 her brother (the accused) called her mother’s mobile asking for the house keys. At this time the complainant, her mother and her younger sister Manisha were at the complainant’s sister in law’s house.
   
6. The complainant left for her home with the house keys, after opening the door she entered the house and opened the back door for the accused to enter. Upon entering the house the accused went to have his shower.
   
7. The complainant was in her bedroom, after a while the accused came into her bedroom and did something bad to her. The complainant explained that she was lying on her bed, the accused came and had sexual intercourse with her by penetrating her vagina with his penis. Whilst having sexual intercourse the accused was moving his penis to and fro inside her vagina until he ejaculated outside. At this time the complainant’s mother knocked on the door.
   
8. The accused went and opened the door, her mother came inside the bedroom and asked her what she was doing the complainant replied by saying that she was doing nothing.
   
9. After a while the complainant’s mother gave her some sugar to take to her sister in law’s house. The complainant went with her sister Manisha and on the way she told Manisha what the accused had done to her and later she also told her paternal aunty about what the accused had done to her.
   
10. The final witness was Anjila Devi the mother of the complainant, she recalled on one occasion between 1^st February and 13^th March, 2019 she was working at her sister in law’s house. When she went home she saw the door of the house locked so she knocked, the accused (her son) opened the door. When the accused had opened the door she saw him lacing the cords of his pants. The witness went inside the house when she entered the complainant’s bedroom she saw the complainant naked.
    
11. On the other hand, the defence position has been that the accused did not commit the offence as alleged. He did not rape the complainant by penetrating her vagina with his penis between 1^st February, and 13^th March, 2019.
    
12. The complainant did not tell her mother about what the accused had done to her when her mother had asked her if anything had happened to her. In respect of the mother’s evidence the defence contention is that if Anjila had seen her daughter naked she would have asked some questions to ascertain why her daughter was naked and not just walk away. The complainant had made up a story to implicate the accused, the complainant did not tell the court that she was naked yet her mother said otherwise.
    
13. I have kept in mind that the consent of the complainant is not an issue in this case. Upon considering the evidence adduced by the prosecution this court is unable to accept the complainant’s evidence as truthful and reliable.
    
14. When the complainant was asked by her mother a few minutes after the alleged sexual intercourse if anything had happened to her the complainant’s reply was that nothing happened.
    
15. I am unable to understand why the complainant did not tell her mother that she had been raped by the accused when her mother had come into her bedroom. The complainant did not give any reasons for this.
    
16. I am also unable to accept the evidence of the complainant’s mother that she had seen the complainant naked when she entered the complainant’s bedroom. The complainant’s mother did not question the complainant when she saw the complainant naked is untenable on the totality of the evidence.
    
17. On the totality of the evidence this court does not believe the complainant’s evidence as probable and therefore it is unsafe to find the accused guilty on such flimsy evidence.
    
18. There are many doubts in this case, this court is not satisfied beyond reasonable doubt that the accused between 1^st February, 2019 and 13^th March, 2019 had unlawful carnal knowledge of “VR”.
    
19. For the above reasons, I accept the unanimous opinion of the assessors that the accused is not guilty of the offence of rape as charged.
    
20. The accused is acquitted forthwith.
    
21. This is the judgment of the court.
    

Sunil Sharma
Judge

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.