State v Singh [2024] FJHC 603; HAC007.2023 (30 September 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA SITTING IN BA
CRIMINAL JURISDICTION

HAC 007 OF 2023

BETWEEN:
STATE
PROSECUTION

AND:
ROBERT RANJIT SINGH
ACCUSED

Appearances: Ms S Naibe (ODPP) for the State
Ms B Kumari & Ms A Nisha (LAC) for Accused

JUDGMENT

Introduction

1. The accused Robert Ranjit Singh was charged for one count of Rape contrary to section 207(1) and (2)(a) of the Crimes Act, 2009.
   
2. The offence as per the information as follows:

Statement of Offence

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

Particulars of Offence

ROBERT RANJIT SINGH on the 6^th day of February 2022 at Ba in the Western Division, had carnal knowledge of SALANIETA LEGA without her consent.

3. Accused pleaded not guilty to the said offence. The matter proceeded to trial from 18/9/24 to 19/9/24. Prosecution led the evidence of one witnesses to prove its case i.e. PW1 – Salanieta Lega (complainant).
   
4. At the end of prosecution case, the court ruled that there was a case to answer for the accused.
   
5. Accused was put to his defence and he exercised his right to testify. DW1 – Robert Ranjit Singh (accused) was the sole defence witness.
   
6. At the completion of the defence case, both counsels filed closing submissions as directed by the court. I’m grateful and acknowledge the assistance rendered by counsels.
   

Brief of Prosecution Evidence

7. PW1 – Salanieta Lega (complainant)

When she arrived at accused place at Varadoli Ba on date and time in question, she noticed when at the front door, a little girl was in that house and she was watching cartoons. She also noticed accused with a bottle beer and accused also informed her that the present a toy he bought for their daughter was inside accused bedroom. That’s the first time for her to go to accused place. Accused pointed out the second room to her. When she approached the bedroom she could hear the volume of the television increased. She was still searching for the switch in that room when accused walked in, closed the door and pushed her unto the wall. Accused applied force on her by holding both of her hands closer to the wall and told her that he will make love bites on her neck. She pushed accused away and said no and accused made the love bite and it felt like burning sensation like her skin came out. She then held her neck and went to the other side of the wall. Then accused punched both of her knees and she went down on the sponge there. When she was down there accused forced himself on top of her. She continued to say no but accused continued. Accused then removed her pants and shoved his 3 fingers into her vagina and after that he forced himself into her. She was wearing a round neck t-short and shorts then. At that time she was lying on the sponge half seated and accused was all over her. After accused had forced his three fingers into her vagina, accused then inserted his penis into her vagina. Accused was wearing a shorts only and without a shirt or top then. Accused had pulled his shorts halfway to his knees and then inserted his penis into her vagina. She kept telling the accused to stop and pushing him away and also banging the floor. Accused was completely all over her and had inserted his penis into her vagina for about 30 seconds. When accused was doing this, her body position was inclined to the wall. After that accused stood up and told her to hurry up and chased her from there. Accused went out of the room and went to make coffee for himself. Accused returned with an electric kettle and poured water on her. It wasn’t hot water. She then told accused that he had just raped her and that she will report the matter. Accused told her to go and report. The lady who is the mother of the small girl was there at that time. She wore her clothes took her phone from the accused and left the said place. She went home it was raining and she reported the matter to police 8 days after the alleged incident.

In cross examination she stated that accused had forcefully inserted his penis into her vagina and she never consented. She went to accused place because it was their daughter’s birthday and accused want to give her a present for their daughter. She confirmed that she was medically examined too after reporting and she confirmed that there were no injuries noted on her neck, thigh and vaginal areas. She was examined 8 days after alleged date of incident and her injuries would have healed. When she had left accused kept calling and sending message to her to return and accused also said sorry to her. She didn’t want to return and didn’t reply to the call or messages from accused. The complaint in this matter has nothing to do with any complaints against her for an arson matter. It also has nothing with maintenance for their child as she’s responsible for everything concerning their child. Accused had moved in to her place in March 2022 and she never allowed accused to return to her. When she reports to police, accused packs his things and goes. She had chased accused multiple times but he continues to remain there. She admitted that they got legally married in 6/2/23 as they both consented, to have a name on child’s birth certificate.

Brief of Defence Evidence

8. DW1 – Robert Ranjit Singh (Accused)

On the day in question PW1 came to his place and entered his bedroom and he followed her inside. PW1 was then looking around inside the room, the drawer, the table and heated argument occurred inside the room. PW1 told him that he had left them and now staying in this room and has money to pay for the room and staying with the lady and her daughter in the house. PW1 was blaming him for the arson case that he had reported her to the station and denied doing that. PW1 was taunting him that he was the one who reported and then the argument became heated and then he decided to walk out of the room. He then told Avelina who was with her child at that time and he told Avelina tell PW1 to leave. He went to make coffee whist PW1 was still in the bedroom. He asked PW1 to come and have coffee. PW1 came out but didn’t have coffee but asked for her phone which he had taken with him when he came out of the bedroom. He returned PW1’s phone and she returned back inside the bedroom. He came inside the room and told PW1 to come out of the room but she refused and then he poured cold water on her from an Aqua safe water bottle. PW1 then tore one pants and 2 shirts of his that were in the wardrobe. PW1 then came to the living room where Avelina and her daughter were watching cartoon. Avelina enquired as to what happened but PW1 just smiled and left the house. The allegation by PW1 that he had inserted his three fingers into her vagina and also inserted his penis into her vagina by force is a false allegation. He denied biting his neck and punching her thighs. According to him, PW1 made this allegations because of a report he made to police with regard to an arson allegation involving PW1. He met PW1 a week’s time after this allegation. They still communicated and also met in person and he went over to her place. The allegation is false and in March 2022, he had moved in with PW1. Their relationship was good and they had a daughter together. There relationship was up and down and they do argue. After 8 days police approached him regarding the allegation and he was charged in October 2022. They got legally married on 6/2/23 and still married today.

In cross examination he stated admitted that at present his living with PW1. He agreed that he was charged in December 2022 and not October 2022. He also agreed that in December 2022, the Magistrate court made orders for him to stay at Nasivi Vatukoula but after being released on bail, he went to live with PW1. He agreed that he had breached his bail condition. He disagreed that PW1 chased her many times but he refused to leave. He agreed that he had called PW1 on the date and time in question and that the main reason for her to come over to his place was pick a toy for his daughter’s birthday. He admitted that PW1 had entered the bedroom and he entered too but denied closing the door. He denied pushing PW1 onto the wall, making love bites on her neck, punching her thighs, removing her pants and inserting three fingers into her vagina. He also denied inserting his penis into her vagina for 30 seconds. He admitted that the facts that PW1 was seated beside the table with her phone after going back into the bedroom and the $30 m-paisa money being sent to him by PW1 one week after the incident were never put to PW1 in cross examination. He denied making up these facts. He admitted that PW1 never left with the item she came for. They had good relationship and they had their ups and downs.

Issue

9. Whether prosecution had proved beyond reasonable doubt the elements of the offence charged?
   

Law/Analysis

10. In assessing the evidence, I bear in mind that prosecution has the burden of proving the accused guilt beyond a reasonable doubt. This burden never shifts to the accused and remains with prosecution throughout the trial. Prosecution must prove all the elements of the offence beyond a reasonable doubt before an accused is found guilty for any criminal offence. (see: Woolmington v DPP (1935) AC 462 & sections 57 & 58 of Crimes Act 2009)
    
11. I also keep in mind that in sexual related offences the need for corroboration is no longer required. That is clearly stated in section 129 of the Criminal Procedure Act, 2009. Thus the Court can acquit or convict on the basis of whether it disbelieves or believes complainant’s evidence alone.
    
12. I further bear in mind of the definition of consent and carnal knowledge as alluded to in section 206 of the Crimes Act 2009, and as follows:

(1) The term “consent” means consent freely and voluntarily given by a
person with the necessary mental capacity to give the consent, and the
submission without physical resistance by a person to an act of another
person shall not alone constitute consent.
(2) Without limiting sub-section (1), a person’s consent to an act is not
freely and voluntarily given if it is obtained–
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or
purpose of the act; or
(f) by a mistaken belief induced by the accused person that the
accused person was the person’s sexual partner.
(3) The term “penetrate” does not include penetrate for a proper medical,
hygienic or law enforcement purpose only.
(4) If “carnal knowledge” is used in defining an offence, the offence, so
far as regards that element of it, is complete on penetration to any extent.
(5) “Carnal knowledge” includes sodomy.
(6) The terms–
“genitalia” includes surgically constructed genitalia.

13. The elements of the said offence of Rape charged against accused as follows:
    1. The accused (Robert Ranjit Singh);
    2. Penetrated the vagina of complainant (Salanieta Lega) with his penis;
    3. The complainant didn’t consent to the accused penetrating the vagina with his penis;
    4. The accused knew or believed or was reckless that complainant wasn’t consenting for him to insert his penis in that manner.
       
14. According to the agreed facts, the following are admitted evidence:
    1. That Robert Ranjit Singh (hereinafter referred to as the Accused) at the material time was 35 years old, Driver residing at Nasivi, Vatukoula.
    2. That Salanieta Lega (hereinafter referred to as the Complainant) at the material time was 30 years old, Electrician residing at Veisaru, Ba.
    3. That the accused and complainant were de-facto partners at the time of offending.
    4. That on 6^th February 2022 at about 9am, PW1 received a call from the accused asking her to go to his home at Varadoli, Ba.
    5. That the complainant went to accused home.
       
15. In addition to the above, what can also be adopted as undisputed facts as per the evidence adduced as follows:
    • That the alleged incident occurred inside accused bedroom where he was renting at Varadoli, Ba.
    • That accused was living in that house at Varadoli with a lady namely Avelina and her daughter.
    • That Avelina’s daughter was watching cartoon in the living room when the PW1 and accused went inside bedroom and at that time Avelina’s mother was at a neighbours house to deliver some food.
    • That the alleged incident occurred inside accused bedroom.
    • When accused and PW1 came out of the bedroom, Avelina and her daughter were in the sitting room watching TV.
    • That after the alleged incident PW1 left the said premises from Varadoli, Ba and returned to her place at Veisaru Ba.
    • That PW1 reported the matter to police 8 days after the alleged incident.
    • That the accused was charged in December 2022.
    • That complainant and accused legally married on 6^th February 2023.
    • That complainant and accused are living together.
      
16. The case presented by the prosecution indicates that PW1 visited the accused's location to acquire a gift for her daughter, as her daughter's birthday fell on 6^th February 2022. While in the rented bedroom of the accused, he also entered the room, closed the door, and pushed her against the wall. Accused then proceeded to bite her neck and subsequently punched her thigh. When she was on the sponge, accused then then removed her pants and inserted three fingers inside her vagina before subsequently penetrating her vagina with his penis. PW1 was forced and did not give consent to engage in sexual intercourse with the accused.
    
17. The defendants case was that PW1 was fabricating accusations against him. The accused claimed that a heated dispute occurred between them within his bedroom and nothing further transpired. He refuted the allegations of rape against PW1. The accused claims that PW1 reported the incident eight days later and that she concocted this complaint as retaliation for the defendant's report regarding her involvement in an arson case. He categorically rejected the accusation of rape as claimed.
    
18. The matter of identification is clear, as both PW1 and the accused acknowledged their presence in the accused's room at the pertinent time. Therefore, based on the elements referenced in paragraph 13 above, the first element of identification is established beyond reasonable doubt. The evidence indicates that there is contention regarding the second, third, and fourth elements.
    
19. According to PW1’s evidence, she was in the rented bedroom of the accused when the accused entered the room, closed the door, and pushed her against the wall. The defendant then advanced to bite her neck and subsequently struck or punch her thigh, leading to her collapse on a sponge. During the incident, the accused was in close proximity to her and then proceeded to remove her pants, inserting three fingers inside her vagina before penetrating her vagina with his penis for a duration of 30 seconds. PW1 stated that she was forced and did not consent to indulge in sexual intercourse with the accused at the pertinent time. PW1 maintained her testimony that the accused forced her and penetrated her vagina with his penis without her consent. PW1 clearly expressed her refusal to the accused on three separate occasions, yet the accused chose to ignore her and continued his actions. All this evidence pertains to and confirms the second, third, and fourth elements of the charge of rape.
    
20. I observed that PW1 was cross examined at length on the disputed issues and she maintained her story and was not discredited in my opinion. She was consistent and forthright with her version of events. She was a credible and reliable witness.
    
21. PW1, similar to the accused, acknowledged that they entered into a legal marriage on 6^th February 2023 and are cohabiting. She acknowledged that their relationship had its highs and lows, along with various disagreements and conflicts. She asserted that she had no personal benefit to derive from bringing the claim against the defendant. She further asserted that the claim was unrelated to any child support matters or accusations of arson.
    
22. Additionally, PW1 submitted a formal complaint to the police 8 days later, as she was overwhelmed with self-blame and was deliberating on whether to bring the issue to light. She underwent a medical examination and acknowledged that there were no injuries observed on her body. To assert that the lack of injuries on her body supports the idea that the allegation was made up is simply not accurate and far from the truth. There is no set standard for how individuals who have made complaints or are alleged victims in sexual-related offenses should react after the incident in question. There are many factors that come into play that would bear on the timing of the complaint being lodged formally and this will vary depending on the circumstances of each individual case. In the current situation, PW1 indicated that her primary concern was her desire to return home and together with the feelings of self-blame and the contemplation of whether to report the incident, these contributed to her decision to report it eight days later. The reasons provided by PW1 for reporting to the authorities 8 days after the incident seem plausible and credible to me. Taking into account the surrounding circumstances, PW1 made the complaint at the first suitable opportunity and I can’t say that 8 days is an unreasonable time. The said evidence don’t impact the credibility and reliability of her testimony on the subject matter.
    
23. The accused denied outright the allegation. Although he had nothing to prove, he failed to come across as a credible and convincing witness. Initially, the accused acknowledged in the agreed facts that he resided at Nasivi Vatukoula. However, in his testimony, he claimed that he never resided at Nasivi Vatukoula as directed and acknowledged that he had violated his bail condition. It seems that the accused has been residing in Ba and, despite being aware of the court's orders, has wilfully disregarded and violated them. He remains in Ba and is currently residing with PW1.
    
24. Secondly, some of the defence evidence which he alluded to such as the M-paisa money being paid to him by PW1 after the alleged incident and that PW1 had wanted him to come and reside with her after the alleged incident were never put to PW1 in cross examination. Although I might consider these evidence as peripheral and doesn’t suggest any guilt on the part of the accused, when all are taken together, they do bear on his credibility in general and I have reservations in believing his narrative.
    
25. The accused did not strike me as a trustworthy and believable witness. His denial is not one I will accept or believe. I believe that the accused case had not raised any reasonable doubt in the states case, even though accused had nothing to prove.
    
26. PW1 on the other hand maintained her firmness and consistency throughout and did not have her evidence discredited.
    
27. Corroboration was not required in this case. This was a case to be decided on whether I believe or disbelieve PW1.
    
28. I find PW1’s evidence was credible and reliable. I believe and accept PW1’s testimony as being truthful.
    

Conclusion

29. In my respectful opinion, prosecution has proved beyond reasonable doubt all the elements of the offence of rape charged.
    
30. I find the accused guilty as charged for rape and convict him accordingly.
    

Samuela D Qica
Judge

High Court – Ba
Monday, 30^th September 2024