State v Chandra [2009] FJMC 11; Criminal Case 76.2009 (7 August 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 76 of 2009

STATE

V

NILESH CHANDRA (s/o MUNI RAJ)

BEFORE: MR. C. LAKSHMAN
RESIDENT MAGISTRATE

For Prosecution: Inspector Ali
Accused: Present
For Accused: Mr. Daveta

JUDGMENT

The accused is charged with 2 counts. The first is defilement of girl between 13 years and 16 years contrary to Section 156 (1) of the Penal Code (Cap 17). It is alleged that Nilesh Chandra (f/n Muni Raj) on the 18th day of November 2008 at Baulevu, Nausori in the Central Division had unlawful carnal knowledge of S P Wati, then being aged 14 years 4 months and 16 days.

The second count is that accused is charged with is indecent assault, contrary to Section 154(1) of the Penal Code (Cap 17) that the accused, Nilesh Chandra (f/n Muni Raj) on the 22nd of November 2008 at Baulevu, Nausori in the Central Division, unlawfully and indecently assaulted a girl namely S P Wati.

The accused pleaded not guilty to both the Counts. The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt.

The victim gave evidence. She tendered her Birth Certificate and she stated that she was 14 years old in 2008. The victim further identified the accused and pointed him out in the witness box.

For the first count, the victim further told the Court that she recalled 18th November 2008 and on this day she went to pick some CD’s in the day time when she was returning the accused called her. She then said that the accused took her inside his house and then took off her clothes (skirt, top and undergarments) and then had sex with her.

The incident according to the victim happened in the accused’s room. She told the Court that the accused laid her on the bed and put his penis into her vagina. She covered her eyes. The accused had sex with her for 10 minutes. Nobody else was in the house.

The victim informed the Court of her medical examination and she identified the report.

For the second count, the victim recalled, 22nd November 2008 and stated that she was with the accused at the riverbank while waiting for the boat the accused put one finger into her vagina. They crossed the river together when the boat came. She also stated that the accused used right pointer finger to touch her vagina and he was sitting down when he touched her.

The victim told the court that she did not tell anyone of the incident. The incidents were reported to the police by her mother.

In cross examination, the victim told the Court she knew accused for about 7 years and had talked to him and knew him when she went to pick up the CD. It was 9am and the accused was not at work as he was sick on 18th November 2008.

The victim in cross examination stated that the accused grabbed her hand and took her to his room. She resisted and yelled and accused told her not to yell and if she yelled he will punch her when she goes to school. She further stated that the accused took her inside the room and she did not take of her clothes and that she did not consent to sex. The complainant also in cross examination told the court that the accused was the first person she had sex with.

The interview statement and the charge sheet were tendered by consent of both the parties.

The accused in his defence gave unsworn evidence. The accused told the Court that he was at work on the alleged date of defilement. The accused further stated that he had built house in the area for 2 years now and questioned how the victim would know him for 7 years.

The accused told the Court that he had a witness the boat captain that they did not cross the river together.

The accused also told the Court that the complainant’s father threatened him with a knife on the alleged date. The father came and struck his house door with a knife. The father of the complainant was also asking loan and he refused. He informed Binesh (person he worked for) of this.

The second witness for the accused was the boat captain (Shiu Bilas), who gave sworn evidence and he recalled 22nd November 2008 (date of alleged indecent assault), when he was captaining his boat. Shiu Bilas told the Court that he first picked Nilesh and later about 20-30 minutes time gap he picked the complainant.

In cross examination Shiu Bilas told the court that the accused and the complainant did not cross the river together. Shiu Bilas also in cross examination told the Court he did not see the accused and the complainant together at any time that day at the riverbank.

The Court noted that Shiu Bilas was subpoenaed by the prosecution. The prosecution did not call him to give evidence. The accused called Shiu Bilas to give evidence.

The Court noted the demeanor of all the witness in this case.

The Court in this case notes the ruling of the Supreme Court in Eliki Mototabua –v- The State, Criminal Appeal No. CAV0004 of 2005S (Date of Judgment 29th February 2008) where Mason, Handley and Weinberg JJ stated (In paragraph 39):

" ... First, it has never been the law that actual corroboration is required in cases involving sexual offence. There was only a requirement, at common law, that a warning be given of the dangers of convicting on the uncorroborated evidence of complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: See Sereima Balelala –v- The State at p.19."

This Court takes notes of and heed of the comments by the Supreme Court Justices.

The Court notes that when the complainant was taken to hospital for her medical examination she related to the medical officer the history as follows:

"was forcefully kissed by a male who is her neighbour. He kissed her lips, breast and put his finger inside her vagina. Happened on Saturday, 22/11/08. However on further questioning she had sex with him sometime in November."

The complainant’s evidence in Court was that the accused touched her vagina with his finger when they were waiting for the boat. The history the complainant narrated to the doctor was that a male forcefully kissed her lips, breast and put his finger in her vagina. This evidence in court and that narrated to the doctor seems to be inconsistent. In court the complainant alleged that the accused touched her vagina. She did not state anything about her being kissed on her lips or breast. In any event if this happened as is alleged by the complainant near the riverside the boat captain would have testified so.

Mr. Shiu Bilas gave evidence that the complainant and the accused were not together. The accused came first and he (Shiu Bilas) took him to the other side. The complainant came some 20 minutes later and then went to the other side. This evidence creates doubt in the mind of the Court that the accused acted in the manner as alleged by the complainant. One other person (Shiu Bilas) who was at the scene saw the complainant and the accused arrive separately. The allegation by the complainant that the accused either touched her vagina with his finger when they were waiting for the boat or as per her history narrated to the doctor that a male forcefully kissed her lips, breast and put his finger in her vagina are not consistent with the evidence of Shiu Bilas, the Boat Captain.

In fact Shiu Bilas told the court they arrived separately and never were together at the river bank. If the complainant and the victim were never together at the alleged date on the river bank as evidenced by an independent witness (Shiu Bilas) then the offence could not have been committed by the accused as alleged by the victim. The court believes Shiu Bilas who was composed in his evidence and in cross examination. He did not waiver from his evidence. The evidence of Shiu Bilas creates doubts in the mind of the court of the allegations of count 2 of the charge.

The Court notes that offence of defilement is designed to protect young girls between age of 16 and 13 years from exploitation and abuse. If the victims do not consent the accused would be charged for rape. The Court also notes that in a defilement cases it is no defence to any charge of defilement to prove that the girl consented to the act. (Section 156 (3) of the Penal Code, (Cap 17).

The accused gave unsworn evidence and he denied the charge of defilement. He claims that he was working and he left for work at 7am and returned at 5pm on the date of the alleged offence (defilement).

The complainant told the Court that the incident happened at 9am at the accused’s house. From the accused record of police interview, the Court notes the complainant alleged that the accused had sex with her at about 7.30am. The Court notes inconsistency in the complainant’s evidence. The Court does not believe the complainants version. The Court also noted the demeanor of the complainant and does not believe that she is truthful.

For the 1st Count the court has doubts on the times and the version given by the complainant and the court notes that the complainant upon further enquiry by the doctor stated that she was defiled sometimes in November 2008. The complainant states that the initial complaint was lodged by her mother. The charge of defilement it would seem came following the medical examination of the complainant. The complainant first complained to the doctor. The court sees no problem with this. However, the court is not able to reconcile certain issues. The specific medical findings state; "(a) remnants of hymen is seen, meaning hymen is not intact, (b) no injuries to internal and external genetalia." The professional opinion is that, "remanants of hymen is seen".

The court notes that the medical examination shows no finding of sexual intercourse or any opinion of sexual intercourse given for that matter. Given the fact that the complainant was examined 8 days after the alleged incident, which is not too long after the alleged defilement some finding of intercourse would have been noted to support the allegation of defilement. Only findings of "hymen is not intact" and the recording that "remnants of hymen seen" do not assist the court in proving sexual intercourse. The complainant stated in her evidence that she had sex with the accused for some 10 minutes. The medical report does not conclusive support sexual intercourse. The findings of the Doctor and the evidence of the complainant do not add to the charge and the court has doubts in its mind that it cannot reconcile. The court is of the view that it would be dangerous to convict the accused on the charge of defilement given the inconsistencies in the evidence.

The accused is acquitted of both the counts.

28 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE
NAUSORI

07/08/09