State v Prasad [2023] FJHC 84; HAC63.2019 (20 February 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 63 of 2019

STATE

V

AMITESH PRASAD

Counsel : Mr. S. Seruvatu for the State.
: Mr. R. Charan and Mr. S. Singh for the Accused.


Dates of Hearing : 13, 14, 15, 16 February, 2023
Closing Speeches : 20 February, 2023
Date of Judgment : 20 February, 2023

JUDGMENT

(The name of complainant is suppressed she will be referred to as “R.C”)

1. The Director of Public Prosecutions charged the accused by filing the following amended information dated 10^th February, 2023:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

AMITESH PRASAD on the 20^th day of March, 2019, at Nadi in the Western Division, penetrated the vagina of “R.C”, a child under the age of 13 years, with his finger.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Act 2009.

Particulars of Offence

AMITESH PRASAD on the 20^th day of March, 2019, at Nadi in the Western Division, unlawfully and indecently assaulted “R.C”.

2. In this trial, the prosecution called four witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer for both the offences as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   
4. The accused is charged with more than one offence, the evidence in respect of each offence will be considered separately from the other if the accused is guilty of one offence, it does not mean that he is guilty of the other as well. This also applies with the findings of not guilty.

ELEMENTS OF THE OFFENCE

RAPE

5. To prove the first count the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:
   
   • (a) The accused;
   • (b) Penetrated the vagina of the complainant “R.C” with his finger;
   • (c) “R.C” was below the age of 13 years.
     
6. The slightest of penetration of the complainant’s vagina by the accused’s finger is sufficient to satisfy the act of penetration. As a matter of law a person under the age of 13 years does not have the capacity to consent. In this case, the complainant was 11 years at the time of the alleged offending and therefore the consent of the complainant is not an issue in regards to this count.
   
7. The first element of the offence is concerned with the identity of the person who allegedly committed this offence.
   
8. The second element is the act of penetration of the complainant’s vagina with the finger.
   
9. The final element of the offence is the age of the complainant. It is an undisputed fact that the complainant was 11 years in 2019 which establishes that she was below the age of 13 years at the time of the alleged incident.
   
10. In this trial, the accused denied committing the offence of rape he is charged with. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his finger.
    
11. This court must be satisfied that the prosecution has proved all the elements of the offence of rape beyond reasonable doubt in order for this court to find the accused guilty of this count. If on the other hand, this court has a reasonable doubt with regard to any of those elements concerning the offence, then this court must find the accused not guilty.
    
12. Furthermore, the law provides that when a person is charged with an offence and the court is of the opinion that he is not guilty of that offence but guilty of a lesser offence, the court may find the accused guilty of that lesser offence. In this regard, I direct myself that if this court finds the accused not guilty of rape then it should consider the lesser offence of sexual assault.
    

SEXUAL ASSAULT

13. The prosecution must prove the following elements of the offence of sexual assault beyond reasonable doubt:
    

(a) The accused;

(b) Unlawfully and indecently;

(c) Assaulted the complainant “R.C” by rubbing her vagina with his finger.

14. The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed this offence.
    
15. The words “unlawfully” and “indecently” in respect of the second element of the offence of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.
    
16. The final element of assault is the unlawful use of force on the complainant by rubbing her vagina with his finger.
    

In this regard this court has to consider:

(a) whether the force used in rubbing the complainant’s vagina was sexual in nature; and

(b) if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, was in fact sexual in nature.

17. In this trial, the accused has denied committing the offence of sexual assault. It is for the prosecution to prove beyond reasonable doubt that it was the accused, who had unlawfully and indecently assaulted the complainant by rubbing her vagina with his finger.
    
18. If this court is satisfied beyond reasonable doubt that the prosecution has proved all the elements of the offence of sexual assault as explained above, then this court must find the accused guilty. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of sexual assault, then this court must find the accused not guilty.
    

INDECENT ASSAULT

19. To prove the second count the prosecution must prove the following elements of the offence of indecent assault beyond reasonable doubt:
    

(a) The accused;
(b) Unlawfully and indecently;

(c) Assaulted the complainant by squeezing and/or touching her breast.

20. The first element of the offence of indecent assault is concerned with the identity of the person who allegedly committed the offence.
    
21. The words “unlawfully” and “indecently” in respect of the second element of the offence simply means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such act indecent.
    
22. Assault is the unlawful use of force on the complainant by the act of touching her breast.
    
23. In respect of the offence of indecent assault the accused has denied committing this offence. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently assaulted the complainant by squeezing and/or touching her breast.
    
24. If this court is satisfied that the prosecution has proved all the elements of the offence of indecent assault beyond reasonable doubt, then this court must find the accused guilty of the offence of indecent assault. However, if there is a reasonable doubt with respect to any elements of the offence of indecent assault then this court must find the accused not guilty.
    
25. As a matter of law, I have to direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.
    

ADMITTED FACTS

26. In this trial, the prosecution and the defence have agreed to certain facts titled as amended admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
27. For completeness the admitted facts are reproduced herewith:
    
    1. The complainant in this matter is “RC”, 11 years old, student of Valemasima, Votualevu, Nadi at the time of the alleged offence.
       
    2. The accused in this matter is Amitesh Prasad, 24 years old, bus driver of Votualevu, Nadi at the time of the alleged offence.
       
    3. On the 20^th of March 2019, the complainant and her brother, Raheel Chand did not go to school and were allowed to stay home by their mother, Morishma Devi Lal.
       
    4. At about 3.30 pm on the 20^th of March 2019, the complainant decided to go to Shop N Save Supermarket, Votualevu, Nadi which was opposite their junction.
       
    5. As the complainant was walking towards Shop N Save Supermarket, she saw her brother, Raheel Chand standing beside a Westbus bus registration number BA 888 and walked towards him. As she approached Raheel Chand she recognised the driver of the bus as the driver normally does the school trips in the afternoon – the accused being the bus driver.
       
    6. The accused asked the complainant and Raheel Chand if they wanted to go for a joy ride and they both agreed and boarded the bus. The accused had driven the bus to Votualevu College to pick students and dropped them off at the cemetery road, Nadi and then they returned to Shop N Save Supermarket, Votualevu, Nadi where the complainant and Raheel Chand had boarded the bus.
       
    7. After returning to Shop N Save, Raheel Chand got off the bus.
       
28. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.
    

PROSECUTION CASE

29. The complainant informed the court that in the year 2019 she was 11 years of age and a year 7 student. On 20^th March, 2019 the complainant and her younger brother Raheel did not go to school. At around 3.30pm the complainant decided to go to the nearby supermarket to buy something. As she was walking towards the supermarket she saw her brother standing beside West bus registration BA 888. The complainant went towards her brother and she recognized the accused who was their school bus driver.
    
30. The complainant did not know the name of the bus driver but he was commonly called by the name “Monkey”. The accused invited Raheel and the complainant for a joy ride in the bus, both agreed and got in the bus. The complainant and Raheel were the only passengers in the bus.
    
31. The complainant went and sat in the last seat at the rear end of the bus while Raheel sat on the seat behind the accused. After the bus ride was over the accused stopped the bus at the place where the complainant and her brother had boarded the bus. Raheel got off first and as the complainant was getting off the bus at the step the accused held the complainant’s hand and said “just keep quiet don’t shout otherwise I will kill your mum and dad” and drove the bus.
    
32. The complainant got scared and sat on the seat behind the driver, the complainant could not get off the bus because it was in motion. The complainant asked the accused where he was taking her the accused replied to the bus garage to drop her there but instead the accused drove the bus to Savalau near the river.
    
33. At Savalau the accused grabbed the complainant and pulled her out of the bus and took her to a small hill where he made her lie down. The accused then squeezed the complainant’s breast by putting his hand inside her clothes. The complainant could not recall what she was wearing at the time, however, she told the accused “don’t touch it and move away.”
    
34. The complainant further stated that with his other hand the accused put his hand inside her panty and started rubbing his finger on her vagina. The complainant explained “his fingers going around, round it feel like rubbing his finger.” This was painful so she started crying. According to the complainant she was getting a burning sensation. Thereafter the accused again started putting his hand inside her breast and was touching it. At this time the complainant bit the hand of the accused between the thumb and the pointer (index) finger. The accused removed his hand and said “ouch”. The accused after pushing the complainant left her and went to the bus and drove away.
    
35. Since it was getting dark and there was no one to help, the complainant took a walk home, when the complainant was about to reach home she met her step father who asked her where she had been. The complainant was scared of her step father thinking that he might smack her since he is strict on her so she lied to him that someone had kidnapped her. At this time the complainant’s mother came with a police officer and the complainant was taken to the Namaka Police Station. At the police station the complainant told the truth about what the accused had done to her. The complainant recognized the accused in court.
    
36. In cross examination the complainant stated that the accused had asked her brother Raheel for a joy ride and this was relayed to her by Raheel and she agreed to join in. The complainant agreed that in her evidence she had stated that the accused had threatened her to keep quiet otherwise he will kill her mum and dad.
    
37. The complainant was referred to her police statement dated 23^rd March, 2019 to paragraph 4, page 2 which was read as:

Amitesh was still holding my hand and he said to me in Hindustani language “tum nahi utaro meaning in English language you don’t get off. And he threatened me in Hindustani language that if I try to get off the bus tume aur tumar mummy ke hum jaan se maar dega meaning in English language that if you try to get off the bus I will kill you and your mother.”

38. The complainant agreed that she told the police officer the above and the version she told the police was the correct one. The complainant stated that she had never been to the place where she was taken by the accused and there were no houses nearby. The hill where the complainant was lying had grass but she was not able to recall whether her clothes had become dusty or had grass stains on it.
    
39. When it was suggested to the complainant that it was not possible to bite the hand of the accused in the manner described by her when the accused hand was inside her clothes the complainant explained “he put his hand through the side and while he was fondling them his hand was under my chin I push his hand up and bit it.”
    
40. Again the complainant explained when it was suggested that to touch her breast the accused had to move her bra upwards the complainant said the accused had touched her breast from the side of her bra. The complainant was not able to remember which side of her beast was fondled, however, when it was suggested that she was lying because she was unable to recall which side of her breast was fondled the complainant stated that she is telling whatever little bit she could remember.
    
41. The complainant denied lying in court and that nothing had happened. After lodging her report at Namaka Police Station she was taken to the Nadi Hospital for a medical examination. The complainant denied accompanying the accused to the West bus garage. She also denied asking for compensation from the accused, the complainant maintained that the accused was rubbing her vagina when asked did the accused finger go inside her vagina. The complainant said it was the finger nail that had gone little bit inside her vagina that caused pain but not fully inside.
42. The second witness Raheel Chand informed the court that the complainant is his elder sister. On 20^th March, 2019 the witness and the complainant did not go to school, in the afternoon he went to the supermarket to buy some things. On the way home he met the accused who invited the witness and the complainant to go for a joy ride in the bus driven by the accused.
    
43. The witness and his sister boarded the bus he sat behind the driver’s seat while his sister sat on the back seat there were no other passengers in the bus. After his usual school run the accused stopped at the place where the complainant and her brother had boarded the bus the witness got off and went home without his sister.
    
44. The third witness Morishma Devi Lal the mother of the complainant informed the court that on 20^th March, 2019 she left home for work at about 8am. Both her children were at home, at about 5.30 pm she called the landlord since there was no phone at home to ask about her children. The witness came to know that both her children were not at home.
    
45. When the witness reached home she saw Raheel playing when she asked Raheel about the whereabouts of the complainant the response was they had gone to buy snacks and the complainant did not return home.
46. Upon hearing this, the witness got in a taxi and went to the Namaka Police Station with Raheel. On the way to the police station the witness came to know from Raheel that the complainant and Raheel had gone together for a bus ride. Raheel got off the bus but the complainant did not.
    
47. At the police station the witness came to know that the complainant was with her defacto near the black rock on the roadside. The witness went with a police officer and brought the complainant to the police station. From the police station the witness went to the Nadi Hospital with the complainant.
    
48. In cross examination the witness stated that the complainant told her that she went in the bus driven by the accused and near a bridge the accused took her and put his hand inside her undergarments and touched her breast. According to the witness when she took the complainant to the Namaka Police Station she observed that the complainant was in discomfort and pain but was not crying.
    
49. Upon further questioning the witness stated that she did not approach anyone to reconcile or settle the matter, according to the witness it was the accused parents and cousins who wanted to have the matter withdrawn after payment of some money. The witness denied that she was involved in seeking a monetary sum to withdraw the matter.
    
50. In re-examination the witness clarified that the complainant was in discomfort and pain meant the complainant was saying that she was having pain in her vaginal area and was feeling uneasy. When she first saw the complainant near black rock she saw the complainant was frightened.
51. The witness also stated that she did not ask for money from the accused parents to withdraw the matter. According to the witness the accused parents and cousins had offered $1,000 but the witness did not agree to anything.
    
52. The fourth witness Dr. Shariya Singh informed the court that she graduated with an MBBS degree from the Fiji National University in 2017. After doing internship she was posted to the Nadi Hospital as a Medical Officer.
    
53. On 20^th March, 2019 at around 9.30 pm the witness had examined the complainant at Nadi Hospital. The Fiji Police Medical Examination Form of the complainant was marked and tendered as prosecution exhibit no. 1. According to the witness the patient was emotionally traumatized, she did not look happy and had dried up tears on her face.
    

54. The specific medical findings were:

1. Light bruising at the perineum area. The witness explained perineum was between the vaginal opening and the anal opening. The soft skin had some reddish area from pink to red.
   

55. In the professional opinion of the witness she had noted:

a) Recent injury;

2. Physical finding consistent with history.
   

56. The witness explained the injury was recent because of the area of redness indicating last few hours of injury. The witness had also made a noting in appendix one namely that the perineum had reddish area, no obvious cuts or bruises and there was no evidence of penetration and the hymen was intact.
    
57. The witness further explained that there was no evidence of rough physical assault, cut or bruises. According to the patient it was gentle touches which were consistent with her findings. The witness agreed the redness seen could have been as a result of rubbing against the skin.
58. As for the hymen being intact the touching or rubbing or putting fingertip in the vagina would not rupture or break the hymen. By mentioning no evidence of penetration the witness meant there was no penis penetration or any object had entered the vagina which would have caused rapture or stretching of the hymen. The witness also clarified it was not possible to say medically that there was a fingertip penetration and if a fingertip did penetrate the vagina it would be difficult to say whether that would have caused the redness.
    
59. In cross examination the witness stated that there was rubbing involved and nothing about insertion of finger into the vagina. The witness also agreed that the redness seen could be self-inflicted by itching or feeling or rubbing that particular area.
    

DIRECTION ON EXPERT EVIDENCE

60. This court has heard the evidence of Dr. Singh who had been called as an expert on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide the court with information and opinion which is within the witness expertise. It is by no means unusual for evidence of this nature to be called and it is important that this court should see it in its proper perspective. The medical report of the complainant is before this court and what the doctor said in her evidence as a whole is to assist this court.
    
61. An expert witness is entitled to express an opinion in respect of his or her findings and I am entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the doctor. When coming to my conclusion about this aspect of the case this court should bear in mind that if, having given the matter careful consideration, this court does not accept the evidence of the expert it does not have to act upon it. Indeed, this court does not have to accept even the unchallenged evidence of the doctor.
    
62. This evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to this court in reaching its decision, this court must reach a decision having considered the whole of the evidence.
    
63. This was the prosecution case.
    

DEFENCE CASE

64. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination and also called three witnesses. This court must also consider their evidence and give such weight as is appropriate.
    
65. The accused informed the court that in 2019 he was 24 years of age and he was working as a Mechanic and Bus Driver. On 20^th March 2019, the accused was driving a bus from Malawai Housing going towards Votualevu High School.
66. Raheel the brother of the complainant waved for the accused to stop his bus. When the accused stopped the bus both Raheel and the complainant got in and sat behind the driver’s seat. The complainant told the accused that her mum is waiting at the cemetery road. After picking students at Votualevu College he drove the bus towards Votualevu cemetery road and then to the supermarket where he had picked the complainant and her brother.
67. Raheel got off but the complainant did not so the accused told her to get off the bus. The complainant told the accused that she will get off at Nadi bus stop because her mother was waiting for her. Again the accused told the complainant to get off since he was going to the service station to refuel the bus. However, the complainant hid where she was sitting.
    
68. The accused drove to Namaka Total Service Station then to the Nadi Bus Stand for his 5pm trip since he was getting late he took the shorter route through Nadi back road. When he reached Nadi bus stand it was 4.50 pm he did not get a space so he went around the ground and came back at 5pm at the bus stand.
    
69. The accused was able to board passengers for his trip to Votualevu, Malawai and Carreras. The complainant was still in the bus after he finished this trip he went to the bus garage. The accused said that during the final leg of his trip the accused asked the complainant why she didn’t get off.
    
70. The complainant didn’t say anything so he gave his phone to the complainant to call her mum. The accused was not sure whether the complainant had called her mum or not but she returned his phone. After getting his phone he then drove to the bus garage and before entering the garage he again told the complainant to get off the bus. The complainant did not get off so he told the watchman Inia that a girl was sitting in the bus who does not want to get off.
    
71. The accused again went into the bus and told the complainant to get off she told him that her mother is coming to pick her. Upon hearing this he called another driver Anish and told him that a girl is sitting in the bus and she had told him that her mother is coming to pick her.
    
72. The accused was told by Anish if her mum is not coming then he is to drop her. After informing the watchman the accused dropped the complainant from where he had picked her.
    
73. According to the accused the complainant was wearing a white dotted long dress and a jacket. The accused denied all the allegations put to him and on that day he did not take the bus to Savalau.
    
74. In cross examination by the state counsel, the accused denied that he had asked the complainant and Raheel for a joy ride in the bus he was driving. The accused also denied that this proposition was part of the admitted facts, however, he agreed signing the admitted facts.
    
75. The accused agreed that after the complainant and her brother had sat in the bus he had attended to his usual school trip and had returned to the place where he had picked the complainant and her brother. The accused denied that when the complainant was getting off the bus he had held her hand and/or threatened her and had driven to Savalau with the complainant in the bus. The accused denied all the allegations put to him in respect of the charges, he stated that he did not rape and /or indecently assault the complainant. In fact on the day in question he did not drive the bus to Savalau at all. He maintained his version as per his evidence in chief. Upon further questioning the accused stated that he told the truth in court.
    
76. The second witness Inia Vakaruru informed the court that in the year 2019 he was working as a watchman for West bus. On 20^th March, 2019 at 5pm the witness started work at around 6pm the accused drove a bus registration no. HAQ30 into the garage.
    
77. After parking the bus the accused informed the witness that there was a young girl in his bus. The witness went and saw a girl seated in the bus. The witness went back and told the accused to go and drop the girl to the place where he had picked her. The witness does not know the girl and he had never seen the girl before.
    
78. The witness also stated that he told the accused that whatever had happened was probably against the law. The accused left the garage with Kalavo in Kalavo’s car.
    
79. In cross examination by the state counsel, the witness was referred to his police statement dated 23^rd March, 2019. The witness stated that his police statement was not read back to him, however, he agreed that it is not written in his police statement that the witness had a conversation with the accused for the accused to take her back to the place where the accused had picked her. The witness maintained that there was a little girl seated in the bus driven by the accused to the bus garage.
    

PREVIOUS INCONSISTENT STATEMENT

80. This court directs its mind to the fact that the defence counsel during cross examination of the complainant and the state counsel in the cross examination of Inia Vakaruru (defence witness 2) had questioned these witnesses about some inconsistencies in their police statements which they had given to the police when facts were fresh in their minds with their evidence in court.
    
81. This court is allowed to take into consideration the inconsistencies or omissions between what these witnesses told the court and their police statements when considering whether these witnesses were believable and credible. However, the police statements are not evidence of the truth of its contents.
    
82. It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
    
83. If there is any inconsistency or omission, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witnesses. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
    
84. The third witness Anish Chand also known as Kalavo informed the court that in March 2019 he was working for West bus and he was in charge of the bus garage and the drivers trips. On 20^th March 2019 the witness was driving when the accused called on his mobile phone and said that he was going to the bus garage after finishing his trip and that there was a girl sitting in his bus whose mum will be coming to pick her.
    
85. The witness had responded by saying if the parents do not come then he is to take the bus and drop her at her home. According to the witness this conversation took place at around 5.30 pm the accused used to drive the bus registration no.’s HAQ30 and CW888. After work the witness, the accused and one friend of the witness went home in the company bus.
86. In cross examination the witness agreed he did not know if the accused had made all the trips he was required to make that day. The witness also agreed if the accused had taken the bus to Savalau he would not know and if the accused had made the call from Savalau he would not know. The matter was not reported to the police because the accused had told the witness that the girl’s parents were coming to pick her. According to the witness the accused had not told him that the girl did not want to get off the bus.
    
87. The final witness Chattar Pal Prasad the father of the accused informed the court that he was approached by one Timaima to settle this matter. The witness knows Timaima but he was not at any time approached by the complainant’s mother regarding the matter. According to the witness he had received an offer from Timaima but he did not give anyone any money.
    
88. In cross examination the witness stated that the accused is his eldest son and he would do anything to protect him but he won’t lie for his son and will speak the truth. The witness agreed that Timaima is related him, however, upon further questioning the witness changed his position to say that he just knows Timaima who is not married to any of his cousins.
    
89. The witness denied that he had sent Timaima to the complainant’s mum and step father and had offered to give $1,000.00 to withdraw the matter. When it was suggested that he had also proposed to the complainant’s mother that the accused and the complainant get married the witness said he did not say this since he does not know the complainant’s parents.
    
90. This was the defence case.
    

ANALYSIS

91. The prosecution alleges that on 20^th March, 2019 at about 3:30 pm the complainant who was 11 years of age and her younger brother Raheel were offered a joy ride by the accused in the bus he was driving. The complainant knows the accused who was their school bus driver. The accused after completing his trip stopped the bus at the place where the complainant and her brother had boarded the bus.
    
92. Raheel the brother of the complainant got out but while the complainant was coming out of the bus the accused held her hand and threatened her to be quiet otherwise he will kill her and her mother. The complainant was scared she could not get out of the bus because the bus was moving so she went and sat in one of the seats. The accused drove the bus to a secluded place in Savalau, after stopping the bus he grabbed the complainant and pulled her out.
    
93. The accused took the complainant to a small hill where he forcefully made her lie down and squeezed her breast by putting his hand inside her clothes. The complainant felt pain and she told the accused to stop and go away at the same time with the other hand the accused forcefully rubbed her vagina with his finger and then inserted his finger into her vagina.
    
94. The accused did not stop but continued he again touched the breast of the complainant by putting his hand inside her clothes and fondled her breast. The complainant in retaliation pushed the accused hand which was near her chin and bit the hand of the accused between the thumb and the index finger.
    
95. The accused said “ouch” pushed the complainant and then went to the bus and drove off. It was getting dark so the complainant started walking home. Before reaching home the complainant met her step father she was so scared of her step father that she did not tell him about what the accused had done to her. Shortly after the complainant’s mother came and took the complainant to the Namaka Police Station. The complainant was medically examined at the Nadi Hospital the same day, the medical findings of the doctor was of recent injury and reddening around the perineum which was consistent with rubbing.
    
96. On the other hand, the defence says the allegations are baseless and a made up story by the complainant. The accused did not do anything to the complainant as alleged how could he have done so when he did not go to Savalau. The complainant lied in court when she narrated an incident that was not possible and/or probable. The complainant lied to her step father when she met him by saying that she was kidnapped by someone.
    
97. In this saga the complainant is not alone the mother of the complainant is also part of the concocted story. The mother of the complainant with the help of her neighbour Timaima had made approaches to the parents of the accused with the view to extort money from them. This mission failed after the accused father refused to be sucked into this ploy.
    
98. The defence submits that the accused being a responsible bus driver had safely driven the complainant to the bus garage after she refused to get off the bus saying that her mother will come and pick her from the garage. The watchman of the garage had also seen a girl sitting in the bus. The medical report of the complainant is not conclusive since the injuries seen could be self-inflicted.
    
99. Finally, the defence submits that what the complainant told the court does not make sense and is riddled with doubt. The defence is asking this court not to believe the complainant but to believe the accused who gave a frank and honest account of what had happened that day.
    

DETERMINATION

100. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
     
101. Before proceeding any further I would like to state at the outset that there are two important issues that need to be determined in respect of count one before we move on. Firstly, did the accused only rub his finger on the vagina of the complainant or secondly, did the accused whilst rubbing his finger penetrate his fingertip into the vagina of the complainant.
     
102. Count one is of rape, the evidence adduced is determinant on whether there was any slight penetration of the complainant’s vagina by the accused fingertip. The complainant in her evidence during cross examination did say that the accused fingernail had slightly penetrated her vagina which caused her pain.
     
103. In her evidence in chief the complainant on more than one occasion told the court that the accused was rubbing her vagina with his fingers. She had also demonstrated the same on the wooden plank of the witness stand by moving her finger round and round to express her point of what had happened.
     
104. Furthermore, the doctor also confirmed that the reddening seen in the perineum was likely to be as a result of rubbing and that there was no conclusive evidence to suggest any intrusion into the vagina.
     
105. There was an inconsistency between what the complainant told the court and her police statement. However, the age of the complainant at the time and passage of time are crucial in this regard
     
106. The inconsistency or omission between her evidence in court and her police statement was not significant to adversely affect the credibility of the complainant. The complainant was not shaken as to the basic version of her allegations. She was consistent in her evidence as well.
     
107. The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) had made the following pertinent observations about the above at paragraph 16 as follows:
     

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

108. Another pertinent observation was also made by the Court of Appeal in Joseph Abourizk vs. The State, AAU 0054 of 2016 (7 June, 2019) at paragraph 107 in the following manner about deficiencies, drawbacks and other infirmities in evidence by taking into account the comments made by the Indian Supreme Court in State of UP v. M K Anthony (1985) 1 SCC 505:

‘While appreciating the evidence of a witness the approach must be to ascertain whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, then the court should scrutinise the evidence more particularly to find out whether deficiencies, drawbacks and other infirmities pointed out in the evidence is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case should not be given undue importance. Even truthful witnesses may differ is some details unrelated to main incident because power of observation, retention and reproduction differ with individuals...’

109. After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a consistent and coherent account of what the accused had done to her, she was also able to withstand cross examination and was not discredited. The complainant was steadfast in what the accused had done to her.
     
110. I accept that the complainant had lied to her step father about being kidnapped by someone. In my considered judgment this reaction by the complainant cannot be taken in isolation the circumstances of the complainant is an important consideration in this regard.
     
111. It is not expected of an 11 year old girl who has just had an unexpected sexual encounter to tell the first person she meets everything about what had happened to her. I also accept that the step father was strict on the complainant and that she was afraid of being assaulted by the step father which was another fear the complainant had at the time. The failure by the complainant to tell her step father anything about what she had undergone does not affect her credibility at all.
     
112. Furthermore, experience has shown that individuals differ in terms of how they react towards people after an unexpected happening to him or her. Some display obvious signs of distress and some not. The fact that the complainant did not tell anything to her step father about what the accused had done to her does not mean that she was a liar and she should not be believed. The circumstances of the complainant ought to be considered holistically. It cannot be ignored that the complainant was a child of 11 years at the time who was oblivious to an unexpected conduct by the person she knew.
     
113. Another aspect of this trial is that during cross examination of the complainant’s mother it was revealed that the complainant had told her mother that the accused had taken the complainant to Savalau in the bus and had touched her breast and put his hand inside her undergarments.
     
114. This aspect of the evidence leads me to direct my mind to the fact that the complainant had raised a recent complaint immediately after meeting her mother.
     

RECENT COMPLAINT EVIDENCE

115. Complainants of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
     
116. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight would be given to the fact that the complainant told her mother immediately after the alleged incidents that the accused had touched her breast and put his hand inside her undergarments.
     
117. This is commonly known as recent complaint evidence. The evidence given by Morishma is not evidence of what actually happened between the complainant and the accused since this witness was not present and did not see what had happened.
     
118. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness.
     
119. I accept that whatever the complainant told her mother Morishma was enough to alert Morishma that something wrong had happened to her daughter. There is no legal requirement that a complainant is supposed to tell every detail of what he or she has encountered to the person complained to.
     
120. The decisive aspect of the recent complaint evidence is to show consistency of the complainant’s conduct with her evidence given at trial. It is not expected that a child of 11 years or anyone for that matter who has had an unexpected sexual encounter to give every detail of the accused unlawful sexual conduct to the person the complaint is relayed to.
     
121. In this case Morishma was relayed crucial information that the accused had touched the complainant’s breast and had put his hand inside her undergarments. I also accept the observations of Morishma that the complainant was frightened, distressed and complaining of pain in her vagina. This is also what the doctor had observed of the complainant upon her initial impression of the complainant as well.
     
122. The Supreme Court in Anand Abhay Raj vs. The State, CAV 0003 of 2013 (20^th August, 2014) at paragraph 39 made an important observation about the above as follows:
     

The complainant need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence.

123. I accept the evidence of all the prosecution witnesses as reliable and credible.
     
124. On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. I reject the defence assertion that the accused had not done anything to the complainant as unworthy of belief. The demeanour of the accused was not consistent with his honesty he did not tell the truth when he said he did not do anything to the complainant because he did not drive her to Savalau.
     
125. The accused gave a narration of events which was contrary to admitted facts which he had signed and was accepted by the court. The accused was also not consistent in his evidence as well. In one breath he said that the complainant wanted to go to cemetery road where her mother was waiting for her. After sometime he changed his stance to say that the complainant wanted to get off at the Nadi bus stand because her mother was waiting there.
     
126. The accused again changed his stance when he said the complainant did not want to get off the bus at the bus garage and the complainant had told him that her mother would come and pick her. In cross examination none of the above propositions were put to the complainant’s mother and out of the above only one proposition was put to the complainant that she had accompanied the accused to the bus garage which was denied by the complainant.
     
127. If the accused had indeed driven the complainant to the cemetery road, Nadi bus stand and to the place where he had picked her from before going to the bus garage yet he did not drop her at any of these places is far-fetched. I also do not accept that the complainant did not want to get off the bus.
     
128. The accused did not tell Inia the watchman that the mother of the complainant will be coming to pick her daughter. What the accused told Inia was that the girl did not want to get off the bus? On the basis of all of the above the only inescapable conclusion that can be drawn is that the accused did not tell the truth in court but made up stories as he narrated his evidence in court.
     
129. The evidence by Inia and Anish is also doubtful and far from truth. If there was indeed a little girl in the bus as mentioned by Inia then I am sure both these witnesses would have been keen to probe further into what this young passenger was doing in the bus alone late in the afternoon going into evening.
     
130. Although Anish was only narrating what he was told by the accused still it was obvious to me that both Inia and Anish were not telling the truth and appeared to be withholding information. If there was indeed a little girl in the bus I am sure Inia would have been probing or try and locate the girl’s parents. I reject the evidence of Inia and Anish as not believable.
     
131. I also do not accept that the allegations were made up by the complainant and her mother to extort money from the accused parents. I accept the evidence of Morishma that she was not involved in any way in extorting money from the accused parents. On the totality of evidence I can say that the issue of extortion raised by the defence was to divert attention away from the allegations.
     
132. It is trite that in criminal matters the prosecution witnesses including a complainant do not decide whether a complaint is to be withdrawn or not. This is the discretion of the Director of Public Prosecutions and not the prosecution witnesses hence I cannot see how the complainant and her mother would have withdrawn the complaint.
     
133. The father of the accused said that he was never approached by the complainant’s mother to either reconcile or talk about the withdrawal of the charges. However, I do not accept that Chattar Pal Prasad the father of the accused was not aware of or involved in approaching the complainant’s mother on behalf of his son through one Timaima (who Chattar knew) to get the complainant and the accused married after she attains marriageable age and/or pay a sum of money in the hope that the matter does not proceed any further.
134. I reject the evidence of Chattar Prasad that the complaint made against the accused was to extort money from his family but a made up story to demean and discredit the complainant’s mother and the complainant.
     
135. The defence witnesses did not tell the truth and I do not give any weight to their evidence.

136. The defence has not been able to create a reasonable doubt in the prosecution case in respect of the lesser offence of sexual assault in count one and the offence of indecent assault in count two.
     

CONCLUSION

137. This court is not satisfied beyond reasonable doubt that the accused on 20^th March, 2019 had penetrated the vagina of the complainant with his finger, a child under the age of 13 years. However, this court is satisfied beyond reasonable doubt that on the above mentioned date the accused unlawfully and indecently assaulted the complainant by rubbing her vagina with his finger.
     
138. This court is also satisfied beyond reasonable doubt that the accused on 20^th March, 2019 unlawfully and indecently assaulted the complainant by squeezing and/or touching her breast. In respect of the above two offences of sexual assault and indecent assault this court is also satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse, in what he did to the complainant. The acts of the accused have some elements of sexuality and indecency that any right minded person would consider such conduct sexual and indecent in nature.
     
139. In view of the above, I find the accused not guilty of one count of rape and he is acquitted accordingly, however, I find the accused guilty of the lesser offence of sexual assault and he is convicted accordingly. For the second count of indecent assault the accused is found guilty and he is convicted as charged.
     
140. This is the judgment of the court.
     

Sunil Sharma
Judge

At Lautoka
20 January, 2023

Solicitors
Office of the Director of Public Prosecutions for the State.
Messrs Ravneet Charan Lawyers for the Accused.