State v Kumar - Judgment [2012] FJMC 361; Criminal Case 675 of 2012 (12 August 2012)

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

NADI CRIMINAL CASE NO. 675 OF 2012

BETWEEN:

STATE

AND:

RAJESH KUMAR

Before : Mr M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date of Judgment : Thursday 08 August 2012

Appearances
For The State : WPC Ana, Prosecution Department, Nadi
For Accused : Ms Jiuta, Legal Aid Commission, Nadi
(Victim's name has been suppressed)

JUDGMENT

Introduction

1. Accused was charged with one count of Indecent Assault. The charge read as follows:
   

CHARGE

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Rajesh Kumar on the 24 day of March, 2012 at Nadi in the Western Division, unlawfully and indecently assaulted S S P.

2. As he pleaded not guilty to the charge the matter proceeded to trial.

3. At trial, Prosecution led oral evidence of four witnesses namely S S P, the victim (PW1), Padma Wati (PW2), Nilesh Nirmal Prasad (PW3) and Sgt Savita (PW4). The Prosecution also tendered in evidence the record of Interview of Accused marked as "P/Exhibit 1". I would sometimes state what each witness told in court in my analysis.

4. Defence called two witnesses namely the Accused (DW1) and his wife, Reshmi Lata (DW2).

The Law

5. Section 212 of the Crimes Decree provides that:
   

(1). A person commits a summary offence if he or she unlawfully and indecently assaults any other person.

(2). It is not defence to a charge for an indecent assault on a boy or girl under the age of 16 years to prove that he or she consented to the act of indecency.

(3). It shall be a sufficient defence to charge for an indecent assault on a boy or girl under the age of 16 years to prove that:-

(a). the boy or girl consented to the act of indecency and that the person so charged had reasonable cause to believe, and did in fact believe, that the boy or girl was of or above the age of 16 years; or

(b). that the offender was of similar age to the boy or girl and that consent to the act of indecency was given in the context of a continuing friendship between the offence and the boy or girl.

(4). No person who is on a relationship of control or trust over the boy or girl may rely on a defence provided for in sub-section (3).

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

(a). The Accused, Rajesh Kumar;

(b). unlawfully and indecently; and

(c). assaulted S S P, the victim.

Analysis

7. It is alleged that the Accused indecently assaulted the complainant on 24 March 2012 at her home.

8. As stated in para. 6 above, the Prosecution must prove the three elements beyond reasonable doubt in order to establish the charge.

9. First element 6(a), the Accused, Rajesh Kumar, was not in dispute hence the first element of the charge will be deliberated in the analysis. However all other elements were disputed by the defence.

10. PW1 in evidence stated that she is staying in Nawaka since birth. She is living with her father and her grandparents. She is 15 years old, attending school but because of this incident the teachers started to question her so she left school. On 24/03/2012 she was at home with her father and grandmother. Some neighbours also came to her house that day. They were sitting with her father in the porch talking. Then Rajesh (accused) came. She was sleeping inside the house. Rajesh asked her father what happened to her. Her father told Rajesh "she is sick and having bad dreams". Then Rajesh told to wake up and bring her to him and he can cure her. He (Rajesh) then asked her to bring some ash from the fire place. She brought ash. He then told her to go to bedroom and was talking to her father. After a while he came inside her bedroom and started to tell that her friends who she hangs around with are not good people. Then he told to open her top. She told him that she did not want to take out her top, but he told her that he had already talked to her father that she has to take out her top otherwise her father will come to the bedroom. When she took out her top, he told her to take out her bra. After taking out her bra he squeezed her breast and also put ash on her breast. After that he told her to hold him tightly (hug). She held him tightly then he told her that she was a good girl. Afterwards, he came out of the bedroom and told her father that "don't worry my brother; your daughter will be okay". Then he went away. After that she came crying to her grandmother and told everything that had happened. She knew Rajesh because he is her uncle, her father's elder brother.

11. Under cross examination PW1 stated that she did not know the exact time Rajesh came home but it was between 6:30pm – 7:30pm. She denied the suggestion that he was at the temple at around 7pm and not at her place and told he came to her house. Then defence questioned "Because he was there for some sort of religious healing, right?" She said "yes" to that question. She told that he put his hand on her mouth so that she couldn't shout. She said that she did not tell about the shouting to police because they did not ask about this.

12. PW2, grandmother of PW1 stated in evidence that on 24/03/2012 PW1 came crying and told her about what Rajesh did to her in the bedroom. She then told this to her son, (PW3). She told that she knew that Rajesh was taking her (PW1) to the bedroom.

13. PW3 stated in evidence that on 24/03/12 he was at home sitting down in the sitting room because his daughter (PW1) was sick. On that day Rajesh came to his house. He told him the problem because he regarded him as his elder brother. Rajesh then told him that he can cure his daughter. After that he (Rajesh) told his daughter to get some ash from the fire place. He told him to sit in the living room while he has to take his daughter to the bedroom for curing. Rajesh told him (PW3) that he can do the treatment in front of him but it might affect him. That day he came himself because he often comes to his house. He also told that after 10 minutes Rajesh came out of the bedroom and told him that he was in a hurry, that he's going to a religious function and would meet him some other day, and went. After that his daughter came out, went to his mother (PW2) and told everything Rajesh did to her. His mother then told to him about what his daughter told to her. He reported the matter to police.

14. Under cross examination PW3 stated that he did not see the time but it happened at around 6:00pm – 7:30pm. He denied the suggestion that he is lying under oath and said he told court the truth. He also told that he reported the matter after 3 days because when he went to Rajesh's house, his mother begged him to forgive her son. Next day there were rumours about this incident. Rajesh was telling everyone that "what can I do about it". That's why he reported the matter to police.

15. PW4 was the Interviewing Officer. He produced the record of the Caution Interview marked as "P/Exhibit 1".

16. The Accused (DW1) gave sworn evidence. He in his evidence maintained that he did not go the complainant's house on that day. He said he was at the temple at that time. He was in the temple from 7:10pm till 10:00pm. He also told that the complainant's father (Pw3) threatened him on his way towards the temple. After 8:30 he received a call from his wife that "Nilesh Prasad (PW3) is there at the house and telling that I did something wrong to his daughter". It is to be noted later during evidence he stated that he reached home before 9:00 that night. He further told that PW3 (complainant's father) had made this allegation because he (DW1) had seen him jumping over the fence of his (DW1's) neighbour's place.

17. In cross examination DW1 stated that on that day he met PW3 at 7:30pm. He also told that PW3 threatened him. He admitted that he did not report it to police but stated that he told about the threatening during interview under caution.

18. DW2 (Accused's wife) in evidence stated that on 24/03/2012 at 7pm her husband left home to go to the temple for a religious function. He left home alone. After religious function has finished he came home. She did not know the time. She also told that Nilesh (PW3) came on that night and told that Rajesh (Accused) came to his place and did wrong thing to his daughter.

19. Interestingly the Accused has taken the defence of alibi. He maintained that he did not go to the complainant's house on that day and was at the temple all the times between 7:10pm and 10:00pm. After telling that he was at the temple from 7:10pm to 10:00pm, he said sometime later that he reached home before 9:00 that night. Obviously the Accused contradicted himself on the time when he reached home that night. His wife (DW2) in evidence told exact time (7:00pm) when he left home to go to the temple. But she could not confirm the time when her husband reached home that night. She said she did not know the time when he reached home. The question arises then why she could not tell the time when her husband reached home that night, if she could tell the exact time he left home that day. It appears to me that she was hiding something on this point or she did not want to tell the correct time when her husband reached home that night.

20. The Accused has taken the alibi defence at trial without complying with the rules as to alibi defence as contemplated under Section 125 of the Criminal Procedure Decree. On a trial before any court the Accused person shall not, without leave of the court, adduce evidence in support of an alibi unless the Accused person has given notice in accordance with this section in writing to the Prosecution, complainant and the court at least 21 days before the date set for trial of the matter (Section 125(2) (b), Criminal Procedure Decree). The Accused did not give such notice under Section 125(2) (b).

21. The Accused claimed that he did not go to the complainant's house on that day. To my astonishment, it was suggested to PW3 (PW1's father) that the Accused was there to cure his daughter (PW1). By this suggestion the Accused had admitted indirectly that he was at the complainant's house on that day. This attitude clearly shows that the Accused was not firm in his evidence. The Accused's wife (DW2) has a vested interest in the result of this case because her husband has been with a criminal offence. The court cannot rely on her evidence. I therefore reject the alibi defence as false.

22. PW1 gave clear evidence. She explained how he got removed her top and bra. She further told that he applied ash on her breast, fondled her breast and got her embraced him. As a 15 year old girl, she felt shy to tell about this to her father (PW3). However, she told to her grandmother (PW2) who was working in the kitchen about it. Her grandmother then told her son, (PW3). PW3 then went to the Accused's house to tell the wrong thing he did to his daughter (PW1). He was not at home at that time but met his mother. PW3 told his (Accused's) mother about the incident. His mother pleaded to PW3 to forgive her son. PW3 regards Accused's mother as his aunt. So he (PW3) did not report the matter to police. However, he (PW3) reported the matter after 3 days of the incident when he heard rumours of the incident spread by the Accused. To my mind the complaint made 3 days after the incident cannot be considered as a belated complaint.

23. I have had opportunity to observe the way PW1 was giving evidence in court. She was very calm when she was giving evidence. She also answered cross examination questions quickly. Her evidence was supported by her grandmother (PW2) and her father (PW3). I therefore accept her evidence.

24. The Accused had unlawfully and indecently assaulted the victim (PW1) by fondling her breasts and hugging.

25. The Prosecution has proven each element of the charge beyond reasonable doubt.

26. I therefore find the Accused guilty to the charge of indecent assault contrary to Section 212 of the Crimes Decree. I convict him accordingly.

........................................
M. H. Mohamed Ajmeer
Resident Magistrate