State v Naidu [2011] FJMC 34; CRC675.2008 (3 February 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 675/08

STATE

V

TOTA NAIDU
s/o Narayan Naidu

JUDGMENT

[1] The Accused is charged with one count of Indecent Assault contrary to Section 176 of the Penal Code.

[2] The Statement of Offence and the particulars of offence are as follows:

Statement of Offence

INDECENT ASSAULT : Contrary to Section 176 of the Penal Code, Cap 17.

Particulars of Offence

TOTA NAIDU s/o Narayan Naidu on the 24th day of August 2008 at Lautoka in the Western Division indecently assaulted a male person namely P.B. ( the Victim) by putting his penis into the mouth of the said P. B. ( the Victim).

[3] The alleged incident took place on the 24th August 2008. The Accused was initially charged for Indecent Practices between Males on the 15th September 2008. Later the charges were amended to Indecent Assault on the 13th October 2008. The case was taken up for hearing on the 12th July 2010. The Accused was represented by a Counsel and the Prosecution was conducted by a Police Prosecutor.

[4] Since the victim is a child, I decide to suppress the names of the victim and the Prosecution witnesses who are related to the victim.

[5] The Prosecution called 3 witnesses. After the Prosecution’s case the Counsel for the Accused made an application to have a scene visit before making submissions on no case to answer. The Court visited the scene and later the defence counsel made submissions on no case to answer. The Court decided that the Accused has a case to reply. The Accused gave evidence. But no other witnesses were called for the Prosecution.

[6] The section 176 of the Penal Code reads as follows;

Any person who attempts to commit any of the offences specified in section 175, or who is guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment.

S. R.) who is the grand mother of the Victim gave evidence that they live in the same cnd with the Accused. She said they live separately in two parts of the same house. The witn witness said that on the 24th August 2008 she was at home with her grand children. She said on that day at about 5.00 p.m, one of her grand child, (A.S. N.) came running to her and told her to go and see what the Accused is doing to the Victim of this case ( P.B.). The witness said she looked through a window and saw the Accused was pulling the Victim's head to suck the Accused's penis. She further said that she saw the Accused's penis touching the victim's mouth. She said she was angry and shouted at the Accused. The witness said then the Accused stood up and pulled his trousers up with his penis still out. She further said that when the Accused opened the door, she took a stick and hit the Accused. The witness said when this incident happened, her grand-daughter (A.S.N.) was 8 years old and the Victim was 2 years old.

[8] The witness, (S.R.) was cross-examined by the Defence. During the cross-examination the Defence Counsel suggested that she couldn't have seen what was happening inside the Accused's house through the kitchen window.

Q: You are not telling the truth. Tota didn't pull the victim's head?

A: If I lie, why should I come to Court? I don't lie.

Q: You can't see from the kitchen window to sitting room?

A: When you look though the kitchen window you can see.

Q: I asked, you can't see the settee Tota was sitting?

A: The Counsel can go and see the place.

[9] Further the Defence Counsel suggested that she made a belated complaint to the Police. The witness said, first she made a complaint to the Namaka Police and since they didn't take any action for two weeks, she went to Lautoka Police to make another complaint. This position was corroborated by the Police witness. The Police witness said that the case was referred to Lautoka Police Station by Namaka Police. Therefore, I am satisfied that the delay of recording a statement was not caused by the fault of the Complainant. In the circumstances I decide that the delay in recording a statement cannot be considered as a factor which creates a doubt in the genuineness of the complaint.

[10] It should be further noted that the Defence could not challenge the credibility of this witness during the cross examination. She gave very consistent and clear evidence.

[11] The sister of the victim, (A.S.N.) gave evidence that on the 24th August 2008 she was at home with her other siblings and her grandmother. She said at about 5.00 p.m she was playing with her siblings and the Accused came and took the victim to the Accused's sitting room. She said when she told the Accused to bring the brother, he chased the witness away. The witness said that the Accused's door was closed. She said that she saw the Accused was doing something bad to her brother. She said the Accused was pulling her brother's head to the Accused's penis. She said she did not see the penis touching the brother's mouth. The witness said, she ran home and told her grandmother. She further said she saw this act through the glass part of the Accused's door.

[12] The witness was cross-examined by the Defence. The Defence Counsel suggested that the glass portion of the door is higher than the witness.

Q: The glass portion of the door is higher than your head?

A: I can just stand and look through. It was up to my chest level.

[13] Further the Defence Counsel suggested to the witness, (A.S.N.) that she was coached by her grandmother to give evidence. This suggestion was denied by the witness in the following manner:

Q: You have been told by your grandmother what to tell the Court and to Police?

A: My grandmother told me to tell the truth to the Police.

Q: The word penis and pulling the head were things told to you by Police and the grandmother?

A: They told me to come and tell the Court what happened on that day.

Q: On that day grandmother asked where is the victim and she got angry when she got to know the victim was in Tota's home?

A: Yes. When my grandmother asked where's the victim. I ran to Tota's house and I saw that Tota is doing the bad thing to the victim.

Q: Tota did not do anything bad to the victim?

A: I saw Total giving his penis to the victim.

[14] The sister of the victim, (A.S.N) gave evidence confidently and in a very convincing manner. The Defence could not show the Court, that she is giving inconsistent or contradictory evidence and the defence could not challenge her credibility as well.

[15] At this juncture it is worthwhile to ascertain the veracity of the defence put forward by the accused. The main defence put forward on behalf of the accused seems to be, that the two prosecution witnesses were not able to see what was going on, inside the accused's house. It was suggested to the grandmother of the Victim that she could not have seen anything from the kitchen window and it was suggested to the sister of the Victim that she could not have seen through the glass portion of the door since it is higher than the witness. The Court visited the Accused's house consequent to an application made by the Defence Counsel to have a scene visit. I noted that the glass portion of the front door is only 2 feet and 9 inches high from the ground. It was very clear that an 8 year old child could easily see through the glass of the door. I have taken notice of the kitchen window too. I have observed that one can directly see from the kitchen window the chair, the Accused was alleged to have been sitting. Thus I decline to accept the suggestions made by the Defence regarding the visibility of the kitchen door and the height of the glass portion of the front door.

[16] The Prosecution called WPC 3843 Akisi Waqatairewa to give evidence. She said that on the 25th August 2008 a case was referred to the Lautoka Police by Namaka Police Station. She said she recorded the statement of the witness on the 11th September 2008 and further she said she can't recall why it took 3 weeks to record the statements. Although the police witness corroborated the evidence given by the grandmother of the victim, regarding the complaint to the Namaka Police Station, it should be noted that it is a disturbing state of affairs to see the way that the police handles cases, of serious nature especially regarding children. Also I note that when a Police witness comes to give evidence, he or she should be in a position to explain all the steps of the investigation as a responsible officer without evading crucial issues by giving irresponsible answers.

[17] Be that as it may, after the prosecution case the accused opted to give evidence. The Accused said that on the 24th August 2008 he was sitting on his sofa and watching the Television. He said it's a bucket kind of a settee and it has arm rests. He further said that there was a table beside the sofa. His contention was that he could not have been seen by someone from the glass door or through the kitchen window. He said he deny the allegations.

[18] During the cross-examination, the Accused admitted that the victim was inside his house on that day. He further said in reply to cross-examination that the victim closed his front door. Further he admitted that when he opened the door the grandmother of the victim hit him with a stick. In re-examination the Accused explained why he was hit by the grandmother in answer to a question by the Defence Counsel in the following manner;

Q: Why did she hit you with a stick?

A: She asked me to open the door to take the kid. Then she hit me with a stick.

Q: Did you report the matter to police?

A: No.

[19] There was no dispute in this case regarding the date, time and the place. There was no issue regarding the identity of the Accused as well. Further the Accused admitted that the victim was inside his house and the grandmother of the Accused hit him when he opened the door. The only contention was that he could not have been seen by the witnesses. But for the reasons I mentioned in Para 15 I decline to accept the contention of the accused.

[20] The two witnesses, i.e. the sister of the victim and the grandmother of the victim corroborated each others evidence. They gave very consistent, corroborative and clear evidence regarding the incident. On the other hand the defence could not challenge the credibility of these two witnesses. Although the accused denied that he did not put his penis to the Victim's mouth, there was nothing to create at least a doubt in the prosecution case. I am satisfied that the Prosecution has proved beyond reasonable doubt that the Accused was putting his penis into the mouth of the victim.

[21] The next issue the Court has to consider is whether this act would amount to an act of indecent assault. The Accused is an elderly person and the victim was 2 years when this incident happened. The sister of the victim said that when she looked through the glass the Accused was pulling his brother's head to the Accused's penis. The grandmother of the victim said, when she came the Accused was pulling the victim's head and putting his penis into the victim's mouth. I believe the act of the Accused is unbecoming, immodest and obscure enough to fall into the definition of Indecent Assault in any civilized society. In the circumstances I am satisfied that the Prosecution proved all the elements of the charge beyond reasonable doubt.

[22] Accordingly, I convict the Accused for the charge of Indecent Assault committed on the victim on the 24th August 2008.

Rangajeeva Wimalasena
Resident Magistrate

03rd February, 2011