State v Sharma [2011] FJMC 138; Criminal Case 01.2010 (4 November 2011)

IN THE MAGISTRATE'S COURT AT BA
CRIMINAL JURISDICTION

Criminal case No. 01/2010

THE STATE

v

SALEND SHARMA

For the Prosecution: Mr. Singh/Mr. Babitu
For the Accused: Mr. H. A. Shah

RULING

The Accused Salend Sharma is charged with the following offences: -

First Count - Abduction of a Girl under 18 years of age contrary to section 153 of the Penal Code

Second Count - Abduction of a Girl under 18 years of age contrary to section 153 of the Penal Code

It is alleged that on the 10th of September 2009 at Vaqia, Ba Salend Sharma took Amlesh Lata Sharma a girl under age of 18 years out of the possession of against the will of her parents with the intention that she be unlawfully and carnally known by him.

On the 24th of November 2009 between Lautoka and Rakiraki Salend Sharma took Amlesh Lata Sharma a girl under age of 18 years out of the possession of against the will of her parents with the intention that she be unlawfully and carnally known by him.

The Accused entered a plea of not guilty on the 18th of February 2010 and the matter was set for trial on the 21st of October 2010. On the 15th of June 2010 the State filed an application for the revocation of bail for the Accused as he was in breach of his bail conditions and had been calling the complainant parents and harassing them. After a hearing the Accused was committed to prison and fined $1, 000.

In the middle of this the Accused and the victim got married when she turned 18 and on the 13th of October 2010 – an Application for nullity of marriage was filed in the Family Division of the High Court in Lautoka ostensibly by the victim Amlesh Lata Sharma. This was then discontinued by her in the same Court.

There was a further hearing on variation of bail in the Magistrate's Court in Ba. Evidence was heard from the victim Amlesh Lata Sharma – she confirmed that she was now married to the Accused and wanted to live with him and further she wanted a restraining order against her parents, the complaints in this case as she alleged that they were harassing her.

The matter was then scheduled for trial on the 16th of March 2011. At the trial, the State called the following witnesses: -

1. Salochna Wati Sharma – Health and Care Officer and Advisory Councilor of Vaqia, Ba
   
2. Umesh Prasad – Vaqia, Ba
   
3. PC 3028 Sanjay Dutt
   
4. WPC 3059 Miriama Nadumu
   

The civilian witnesses are the complainants and the parents of the victim Amlesh Lata Sharma. Their evidence is that on the 10th of September 2009 between 10:30 to 2am they noticed their daughter missing from her bed. After searching around the house they received a call from the Accused advising them that he was with Amlesh. They then reported the matter to the police and after a tip off they managed to find their daughter in Saweni on the 14th of September 2009.

On the second occasion, on the 24th of November 2009, after the Fiji School Leaving Certificate examinations, Amlesh was supposed to return home at 1pm however she did not return and they reported the matter to the police again. They managed to find their daughter on the 31st of December at Rakiraki at one Mohammed Farook's house.

They both testified that their daughter was born on the 4th of June 1992 and at the relevant times she was 17 years of age.

They also both confirmed that they had no knowledge of when she left the home and that the Accused did not have their consent to take her from their home.

PC Sanjay Dutt was the interviewing officer and interviewed the Accused under caution on the 21st of September 2009 and on the 2nd of January 2010. He confirmed that he accorded the Accused all his rights during the interview. He confirmed that the Accused gave a voluntary statement and answered all the questions that were asked of him.

The last witness for the State was WPC Miriama and she charged the Accused.

The following documents were tendered into evidence: -

(i) The birth certificate of the complainant Amlesh Lata Sharma

(ii) The record of interview for the Accused dated 21st September 2009

(iii) The record of interview for the Accused dated 2nd January 2010

(iv) The Charge Statement for the Accused dated 21st September 2009

(v) The Charge Statement for the Accused dated 1st January 2010

That was the case for the State.

At the close of the State's case, the Accused through counsel submitted that he had no case to answer.

The Court gave a written ruling on the 19th of May 2011 that the Accused had a case to answer and he was put to his defence.

The matter was then adjourned to the 30th of August 2011 for continuation.

On the date of the continuation the Accused advised that he was not ready as his counsel was unavailable and was actually before the Nadi Magistrate's Court.

The Court was not minded to grant any further adjournment as this was a part heard matter and had been dragging on since 2010. This date had been fixed and the presiding Magistrate had come from Suva to complete the trial.

The matter was then stood down for the Accused to speak to his counsel and to arrange for alternative representation. When the matter resumed, the Accused advised that after receiving advice from his counsel he was going to represent himself.

The Accused elected to give evidence under oath and also called one witness on his behalf.

The case for the Defence

The Accused himself gave evidence first.

Salend Sharma is an electrician residing in Saweni, Lautoka.

In his testimony he admitted that he eloped with Amlesh Lata Sharma. He stated that he has known Amlesh Lata Sharma for the past 4 years.

He confirmed that when he first knew her he knew that she was 17 years of age. He testified that on the 9th of September 2009 he had gone to the Ba Police Station to seek advice as the girl, Amlesh Lata Sharma wanted to go with him. The officers there told him that she was below the age and he was then taken into custody. Later he was released and when he was released he went straight to Lautoka.

He stated that he returned to Ba on the 10th of September at the request of the complainant Amlesh Lata Sharma. She had first called him at 10pm that night to tell him that her parents had assaulted her when they returned home from the police station. She wanted him to pick her up and when he told her that she was underage, she threatened to commit suicide if he did not come and get her. After hearing that, he then drove his car down from Lautoka to Vaqia junction, in Ba. He went and drove slowly towards Amlesh Lata Sharma's home and he met her as she was walking on the way. They then went together to Tavua Hospital because he noticed that she had scratches on her legs. After they went to his brother in law's home in Davota, Tavua and they stayed there for one week after which they went together to Lautoka to his home.

When they were in Lautoka he received a phone call from the girl's parents but she refused to return to them. They stayed one day there and the next day the police and army officers came with the girl's parents and they took her away. He was then taken to the police station and later released.

He confirmed that in the time that they were together he had sex with Amlesh Lata Sharma.

Later he recalled that on the 24th of November 2009 he was in Lautoka in the afternoon and the girl Amlesh Lata called him on his phone. She told him that she was coming to Lautoka but he told her not to come as her parents would cause problems. He later tried calling her but her phone was diverted. When he arrived home, Amlesh came by herself in a taxi and since he did not know what to do he took her and they went to his uncle Farouk in Wairuku, Rakiraki. They spent more than one month there. He realised that her family was searching for her hut they stayed there until her parents came and took her away on the 31st of December.

He stated that they did elope together and she had compelled him to take her. He did not force her; she came on her own as her parents were ill-treating her.

He confirmed that he was now married to Amlesh Lata Sharma and she was 6 month pregnant.

Under cross examination he confirmed that he had not informed her parents that he was going to take her. He also confirmed that he did not obtain the consent of her mother or her father to take Amlesh Lata Sharma from her home. He also confirmed under cross examination that he had sexual intercourse with Amlesh Lata Sharma when was staying with her with his relatives.

The second witness was Amlesh Lata Sharma, domestic duties of Saweni Lautoka.

Her testimony in the main corroborated the Accused's testimony. She confirmed that she has known him for over three years and she confirmed that she left with him from her home in Vaqia on the morning of 10th of September 2009 and they went and stayed in Tavua and later they moved to Lautoka to his home. Her parents came there and took her away.

She also confirmed that on the 24th of November, after her last exam paper finished she took a taxi to Saweni to the Accused's home and from there they left for Rakiraki. She also confirmed that when he first knew her, the Accused was aware that she was 17 years of age.

Under cross examination she confirmed that her parents did not know that the Accused had taken her away he had not obtained the consent of her parents. She also confirmed that on both occasions she had not informed her parents that she was leaving the home.

She stated that from now on all that she wanted to do was to live with her husband the Accused as she was now of an age to decide for herself. She also reiterated that she did not want to be harassed by her parents.

That was the case for the Defence.

Analysis

The Accused Salend Sharma faces 2 counts of Abduction contrary to section 153 of the Penal Code.

In this case the State has the burden of establishing the following elements of the offence: -

(i) That on the 10th of September 2009 at Vaqia, Ba Salend Sharma;

(ii) took Amlesh Lata Sharma a girl under age of 18 years;

(iii) out of the possession of against the will of her parents;

(iv) with the intention that she be unlawfully and carnally known by him.

For the 2nd Count the State had to establish the following elements of the offence: -

(i) That on the 24th of November 2009 between Lautoka and Rakiraki Salend Sharma

(ii) took Amlesh Lata Sharma a girl under age of 18 years

(iii) out of the possession of against the will of her parents

(iv) with the intention that she be unlawfully and carnally known by him.

The State has tendered the two record of interviews conducted on the Accused.

The caution interview and the statements made therein are evidence against the maker of the statement. Shalen Sharma has given a voluntary statement and at Questions 36 to 43 of his statement, he confirms that he took Amlesh Lata Sharma on the 9th of September 2009 from her parents' home in Vaqia without their knowledge and consent.

At Question 42 he then states that he took her to his sister's place in Tavua. At Questions 42 and 43 he confirms that he had sex with her at Tavua.

He also confirmed at Question 48 that he knew that Amlesh Lata was 17 years 3 months old at the time.

During the second caution interview on the 2nd of January 2010, he confirmed that Amlesh came to his home in Saweni on the 24th of November 2009 and they left his home at Saweni together to go to one Farook's house. (Questions 25 and 26)

In questions 35 and 36 he again confirmed that he had sex with Amlesh Lata Sharma.

This evidence has been corroborated in the Accused's evidence and also confirmed by Amlesh Lata Sharma.

His defence as far as the Court can make out is that his intention was not to have carnal knowledge with victim and that he did not abduct Amlesh Lata Sharma but rather that he was taking her away from her parents' abuse.

The offence of Abduction is an offence that does not require evidence of force or coercion on the victim; it is immaterial if she consents to going away with the offender. The people whose consent is material to the offence are the parents of the underage girl.

This was discussed in the case Roshan Ali –v- The State Criminal Appeal No. HAA 008 of 2002.

In a passage of her judgment, Justice Shameem stated as follows: -

This offence is similar to the offence of "Abduction of unmarried girl under eighteen" under the Sexual Offences Act 1956 in England. The offence is committed when a girl under the age of eighteen, is taken out of the possession of her parents against their will for the purpose of sexual intercourse. In R –v- Manktelow (1853) 6 Cox 143, it was held that the "taking" need not be by force, either actual or constructive and it is immaterial whether the girl consents or not. There must be some evidence (as the learned Magistrate held) that there was a "substantial interference with the possessory relationship of parent and child" (Jones supra). In R –v- Timmins (1860) 8 Cox 401, the accused planned with the victim to meet and stay away from her home for several days. They did so meet and had sexual intercourse. The father did not consent, and the accused knew he did not consent. It was held that accused was rightly convicted of Abduction. It is a defence for the accused to show that he did not know, and had no reason to know that the girl was under the lawful care of her parents, or that he had reasonable cause to believe that she was over the age of eighteen. And, it was held in R –v- Mycock 12 Cox 28 that where the girl has already left her father's house for a temporary purpose, intending to return to it, she is still in her father's care within the meaning of the offence, and if whilst out of the house the accused induces her to go away with him, he is guilty. The question of whether the girl was in the possession of her parents is a question of fact. (Emphasis added)

In looking at the evidence before the Court the State has established that on both occasions, on the 10th of September 2009 and later on the 24th of November 2009 – the Accused Salend Sharma engaged in "some conduct amounting to a substantial interference with the possessory relationship of parent and child" (R –v- Jones (1973) Crim. L.R. 621.) He knew that Amlesh Lata Sharma's parents were not aware nor had they given consent for him to take her away from her home in Ba,

The Court also finds that on both occasions the Accused was aware that Amlesh Lata Sharma was a girl under the age of 17 years.

The Court finds that Salend Sharma had the intention of carnally knowing Amlesh Lata Sharma as has admitted in his caution interviews that he did in fact have sexual intercourse with her several times on both occasions that he abducted her away from her home.

In light of the above findings the Court finds that the State has discharged its burden of establishing both counts beyond a reasonable doubt.

Salend Sharma you are convicted as charged for both Counts of Abduction.

The Court will now hear from you in mitigation.

U. Ratuvili
A/Chief Magistrate

4th November 2011