State v Chandra [2012] FJMC 359; Nadi Criminal Case 153.2010 (27 June 2012)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON
[CRIMINAL JURISDICTION]

NADI CRIMINAL CASE NO. 153 OF 2010

BETWEEN:

STATE

AND:

KAMLESH CHANDRA

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date : Thursday 27 June 2012

Appearances
For The State : WPC Ana
For Accused : In Person

JUDGMENT

Background
1. On 12 February 2010 one Kamlesh Chandra was formally charged with two counts of Indecent Assault and one count of Annoying Female. The charges read as follows:-

Count 1
Statement Of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of Penal Code, Cap. 17.

Particulars Of Offence

KAMLESH CHANDRA on the 29th day of December 2009 at Nadi in the Western Division unlawfully and indecently assaulted VIRISIVENI KORO ROKO.

Count 2
Statement Of Offence

ANNOYING FEMALE: Contrary to Section 154(4) of Penal Code, Cap. 17.

Particulars Of Offence

KAMLESH CHANDRA on the 30th day of December 2009 at Nadi in the Western Division with intent to annoy did an act of nature likely to offence her modesty BULOU VIKA.

Count 3
Statement Of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of Penal Code, Cap. 17.

Particulars Of Offence

KAMLESH CHANDRA on the 30th day of December 2009 at Nadi in the Western Division unlawfully and indecently assaulted VIRISIVENI KORO ROKO.

2. The Accused pleaded Not Guilty to the charges. As such the matter proceeded to trial.

3. Prosecution was unable to produce any evidence to support the charge on Count 2, namely annoying female an offence punishable under Section 154(4) of the Penal Code. The Accused was therefore acquitted from Count 2 on the basis that there was no case to answer pursuant to Section 210 of the Criminal Procedure Code.

4. Charges on Count 1 and 3 arising from two incidents allegedly happened on 29 and 30 December 2009.

Evidence of Prosecution

5. At trial Prosecution adduced viva voce evidence of four witnesses namely –

(i). Virisiveni Koro Roko;

(ii). Tavaita Navalau;

(iii). Maria Salome; and

(iv). Cpl. Arif Khan.

The Prosecution also exhibited in evidence the caution interview and the charge statement of the Accused. I will state what each witness testified in Court in my analysis in a short while.

6. Defence adduced only one witness namely the Accused (DW1). DW1 gave sworn evidence after opting to do so. He in evidence denied all the charges as false. He also stated that they are his tenants and they have made these allegations in order to continue to occupy his flat without paying rent. He further told that their main aim is to take his house.

The Law on Indecent Assault (Under Penal Code)

7. In so far as it applies, Section 154(1) of the Penal Code states:-

"154 – (1) - Any person who unlawfully and indecently assaults any woman or girl is of a felony, and is liable to imprisonment for five years, (with or without corporal punishment).

(2) – It is no defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency.

(3) – It shall be a sufficient defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency and that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years".

8. The Prosecution must prove beyond reasonable doubt the following elements:-

(a). the Accused;

(b). unlawfully and indecently;

(c). assaulted any woman or girl.

9. In Sakiusa Tabuatoga Kaukimoce v. State, [2009] HAA 26/08B 30 January 2009 per Mataitoga, J, at [17]:

"Failure to include an essential element – of girl or woman – in the wording of the charge cannot be saved by the provisions of Section 119 and 122, Criminal Procedure Code, and is a nullity. Here, offence against a name. The defect is not one of lack of particularity which prejudices the person charged, rather the fact that on the wording of the charge as laid, there is no offence disclosed. No retrial in the overall interest of justice based on defect and where Magistrate strayed into the trial arena asking 57 questions of various witnesses which were not in the nature of clarification".

Analysis of Evidence

10. Element 8(a) as outlined above, is not disputed by the Accused. The Complainants are his tenants. They are staying in a flat next to that of the Accused. Therefore element 8(a) will not be discussed in this analysis.

11. Nonetheless, the Accused vehemently disputes other elements of the charges that unlawfully and indecently assaulted any woman or girl (the Complainant).

12. The Accused has been charged with two counts of indecent assault allegedly happened on 29 and 30 December 2009 at the Complainant's house.

13. PW1 stated in evidence that at approximately 5pm on 29 December 2009 the Accused came and asked her mum if I (she) could massage him. He brought massage oil and she massaged his back, when he touched her hand. She didn't like it. She came and told her mum.

14. PW1 further told that at around 3pm on 30 December, 2009 she was asleep in her brother's room. She felt like somebody was sitting on her. He was fondling her both breasts. Her younger sister was with her in the room.

15. Under cross examination, PW1 denied that she was watching film with the Accused's wife on 29 December, 2009. She said "no" when suggested that the Accused's wife asked her to massage. She said she didn't report the first incident to police, but she reported the second incident to police. She could not recall when she reported the matter to police. She remained silent to the question that she reported the matter to police after he gave notice to vacate. She admitted that she made statement to police after two months of the incident.

16. It is pertinent to state what she told to police. Her police statement was exhibited as D/Exhibit 1 by the Accused. She stated in her police statement as follows:-

"...On 29.12.09 at about 5pm I was at home when Kamlesh call from his home. He requested my mother if I can go to his place to massage his body. I then went to his house and he brought the coconut oil and we both went to the sitting room. He was seated on the floor and I was seated on the settee and started to massage his back. Whilst massaging his back he started to put his hand through my thigh and touching my private parts. I then pushed his hands away and I told him that I will go and inform my mother. I then told him that I will report the matter. He then told me that he is tired of eating rice and dhal and he wants to eat cassava and rourou".

17. The police complaint has been made on 11.02.2010, i.e. more than two months after the alleged incident.

18. About the first incident, PW1 stated to police that ''... he put his hands through her thigh and touched her private parts". She never told this in giving evidence in Court. As regard the second incident, PW1 told to police that "on 30.12.2009 at about 3pm I was sleeping inside our bed room when I felt that something heavy was on top of me. I then woke up and saw Kamlesh was seated beside me .... He then forcefully lying beside me and he started to touch her breast.

19. It is to be noted that PW1 disclaimed her statement during cross examination. She told that it is not a true statement.

20. PW2, (PW1's sister) in evidence stated that on 30 December, 2009 she was at home at about 3pm, Kamlesh came and knocked at the door and she asked him what he wanted and he said that he wanted to see her sister. He went inside the room and sat on top of her sister. She started to wake her sister up. Her sister woke up and told him to go out and he went out.

21. PW3 is PW1 and PW2's mother. She stated in evidence that they were renting at Kamlesh's house on 29 December 2009. She came home after work around 5pm. Then her daughter told her what Kamlesh did that afternoon.

22. The alleged incident has been informed to PW3 but she was not minded to report the matter to police immediately. PW1 was silent when suggested that they reported to police after the Accused gave notice to vacate.

23. As outlined above PW1 was not consistent in her evidence. She gave entirely contradictory evidence in Court. PW1 disclaimed her police statement as it is not a true statement.

24. PW1 and her mother (PW3) did not show any reaction after the alleged incidents. The mother was informed of the incident on the very first day, but she did not bother to report the matter to police immediately. The complaint to police has been made after some 2 months 11 days of the incident that also after the Accused gave notice to vacate.

25. Besides, the charge against the Accused is that he unlawfully and indecently assaulted any woman or girl. In both charges only the victim's name has been mentioned. The word "woman or girl" has been omitted. As I stated earlier, failure to include an essential elements – of girl or woman – in the wording of the charge cannot be saved by the provisions of Section 119 and 122 Criminal Procedure Code, and it is a nullity [Sakiusa Tabuatoga Kaukimoce (supra)].

26. All that the Prosecution depended on was PW1's account of incident. PW1 contradicted herself. She disclaimed her statement to police as not true. Her evidence was not plausible.

27. I therefore for the reasons set out above find the Accused Not Guilty to the charges on Counts 1 and 3 contrary to Section 154(1) of the Penal Code. I acquit him accordingly.

28. Twenty eight (28) days to appeal.

M. H. Mohamed Ajmeer
Resident Magistrate

At Nadi