State v Naickar [2012] FJMC 97; Criminal Case 155.2011 (18 May 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

Criminal case No. 155 of 2011

THE STATE

V

PUSHP KARAN NAICKAR

Sgt Naidu for Prosecution
Mr. Sharma. J for Accused
Date of Judgment: 18.05.2012

JUDGMENT

BACKGROUND

Accused was charge with one count of indecent assault and one count of indecently annoying any person. The charges read as follows:

First Count

Statement of Offence

Indecent Assault: Contrary to section 212 (1) of the Crimes Decree No.44 of 2009.

Particulars of Offence

PUSHP KARAN NAICKAR on the 09th day of February 2011 at Nadi in the Western Division unlawfully and indecently assaulted Ashika Prasad.

Second Count

Statement of Offence (a)

Indecently Annoying Any Person: Contrary to section 213 (1) (a) of the Crimes Decree No.44 of 2009.

Particulars of offence (b)

PUSHP KARAN NAICKAR on the 10th day of February, 2011 at Nadi in the Western Division with intent to insult the modesty of Ashika Prasad uttered the words and showed gesture, grabbed the hand telling to kiss, intending such words shall be heard by Ashika Prasad.

THE CHARGING SECTION

1. Section 212-(1) of the Crimes Decree No.44 of 2009:
   

"A person commits a summary offence if he or she unlawfully and indecently assaults any other person"

2. Section 213-(1) (a) of the Crimes Decree No.44 of 2009:
   

"(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty."

3. The prosecution must prove three elements for the charges of Indecent Assault and Annoying Any Person: (i) that the Accused, Pushp Karan Naickar, (ii) Unlawfully and Indecently Assaulted, (iii) the complainant, Ashika Prasad. For the offence of annoying any person the prosecution shall prove that: (i) the accused (ii) intending to insult the modesty of the complainant (iii) uttered any words etc... Intending that such word or sound shall be heard...by the complainant.
   
4. The accused pleaded not guilty to the charges as such the matter proceeded to trial.
   

EVIDENCE OF PROSECUTION

5. The prosecution produced 2 witnesses, namely Ashika Prasad (the complainant) and PC Abhay Chand (the interviewing and charging officer). The prosecution also tendered and marked the caution interview and the charge statement Ex P1 and Ex P2 respectively.
   
6. The first witness was PW1 in this case. She testified in examination in chief as follows:-
   

"...on 09th February 2011 at about 9.00am an incident happened. I was inside the office. The accused came and asked for some documents. Then he grabbed my hand and hugged and kissed me. He was behind me. He grabbed my hip. I turned around to push him away. He tried to kiss me and kept on trying to kiss me. He kissed me on my lip...

On 10th February 2011 around 9.00am I was at work in the upstairs office checking emails. Then accused placed his hand on my hand which was on the mouse. I realized something wrong and stood up. He grabbed my hip the same way and said give me a kiss (twice). This time I pushed him away and went outside. I was scared and uncomfortable. I didn't give him kiss...."

11. Under cross examination the complainant stated that she didn't have office key that day and accused opened the office. She also said that on both days Rajnesh filled the attendance and told this incident to her boyfriend.
    
12. In re-examination the complainant testified that on 7, 8 and 9th of February 2011 her arrival time was put by Rejnesh and other days she put the arrival time. She also said that she did not know why Rejnesh filled her arrival time in the attendance register. She also told that on 8th and 9th of February accused gave the key to her and it was first time.
    
13. The second witness for the prosecution was Mr. Abhay Chand, the charging and interviewing officer (PW2). He is also investigating officer. He testified in examination in chief that he charged the accused after recording the interview of the accused. He tendered and marked the caution interview as Exhibit P1 and charge statement as Exhibit P2.
    
14. Under cross examination Abhay Chand stated that the accused was not given a chance to read the complaint and decision was taken to charge the accused before caution interview. The matter was not properly investigated. He also stated that he did not visit the alleged scene and he did not take statements from other employees who were present at work of the two days of the incidents.
    
15. In re-examination he stated that the accused was not given a chance to read the complaint. This is not a requirement. He further stated that he read two counts to the accused, Indecent Assault and Annoying Any Person.
    

EVIDENCE OF THE DEFENCE

16. At the close of the prosecution case, the defence submitted that there no sufficient evidence to put the accused to his defence. But the court held there is a case to answer.
    
17. Then the accused gave sworn evidence and called two witnesses to give evidence on his behalf namely Vinisha Lata (AW1) and Rajnesh Chand (AW2).
    
18. The defence also marked and produce Ex D1-D9. they are:
    
    1. D1 - Attendance Register
    2. D2 – Picture 1
    100. D3 – Statement Form
    4. D4 – Picture 2
    5. D5 – Invoice
    6. D6 – Mana Island Order
    7. D7 – Both Pass
    8. D8 – Employment Contract
    9. D9 – Ex Bk. Vinisha Wages Bk. 2011
       
19. A summary of evidence of the accused is as follows:
    
    1. On 9 February 2011 he went to work around 8.00 am. When he arrived, Rajnesh was already there, office (downstairs) was open and one of his brother-in-laws was also there. He left the shop around 11.15 am and picked Rajnesh from Nadi Town and went to Denarau Marina to go to Mana Island.
       
    2. He then went to his desk in the production room to do his work. He sent Rajnesh to his home for him to get his bunch of keys so that he could open the safe and take out the cameras and other equipment.
       
    100. He didn't give his keys to Ashika to open the Production Office because he didn't have the key that day to give to Ashika.
         
    4. He told he was never alone with Ashika in the Production Office. All the times his Personal Secretary Vinisha was with him in the Production Office.
       
    5. On 10 February 2011 went to work at about 8.30 am. Rajnesh and Ashika were there. Ashika was at her table in downstairs.
       
20. A summary of evidence of AW1 is as follows:
    
    1. She came to work at 8.30 am on 9 February 2011. Then she saw Mr. Naickar, Rajnesh, Ashika and a visitor. She went to the production office. She unlocked it and went inside.
       
    2. Only she and Mr. Naickar have the upstairs office key. On 9 February 2011 she opened the office because Mr. Naickar forgot his keys. He later, around 9.00 am sent Rajnesh to pick the keys. That day she was in the production office with Mr. Naickar from 8.30 am until he left for Mana Island at 11.15 am.
       
    100. That day Ashika came into production office when Mr. Naikar had left for Mana Island. She told Ashika to check company emails.
         
    4. On 10 February 2011 she came to work at 8.35 am. Rajnesh and Mr. Naikar were there. Mr. Naickar was praying. Ashika came upstairs that day during lunch time. When she came Mr. Naickar and she were there. She was in the production room throughout the day.
       
21. A summary of evidence of AW2 is as follows:-
    
    1. On 9 February 2011 he came to work at 8.00 am. Ashika came at about 8.20 am. Mr. Naickar came at about 8.20 am. He opened the downstairs office. Ashika went to her desk at downstairs and started working. We had a visitor so Mr. Naickar was talking to the visitor. Vinisha came around 8.30 am. She went to production office. She opened the production office.
       
    2. Only Vinisha and Mr. Naickar have production office keys.
       
    100. That day Mr. Naickar went to Mana Island for job. He left at 11.15 am.
         
    4. Mr. Naickar and Ashika were never alone in production office that day.
       
    5. On 10 February 2011 he came to work at 8.30 am. Ashika also came at 8.00 am. Mr. Naickar came by 8.30 am. Ashika went to her desk downstairs. Mr. Naickar opened the production office and went to prayer.
       
    6. Mr. Naickar and Ashika were never alone.
       

ANALYSIS OF EVIDENCE

22. The accused has been identified by recognition. He is the employer of the complainant in this case. Hence element (a) is not disputed by the accused. However, he denied both charges as untrue.
    
23. As stated above, PW1 stated in evidence that at about 9.00 am on 9 February 2011 she was inside the upstairs office. The accused came and asked for some document. When she stood up, he grabbed and kissed her and touched her breast. And around 9 am on 10 February 2011 she went to work again. She went to upstairs office. She was checking emails. Then the accused came upstairs and placed his hand on her hand which was on the mouse. When she stood up he grabbed her hip and said give me a kiss (two times). She pushed him away and went downstairs.
    
24. At the conclusion of the prosecution case, the defence made submission for no case to answer. After hearing the submissions I held there is a case to answer. In my ruling on no case to answer I indicated that it is not for this court to decide whether each element of the charges has been proved beyond reasonable doubt and that is the course that I will adapt at the end of the trial if I find a case to answer.
    
25. Now in this judgment I have to see whether there is sufficient evidence to prove each element of the charges beyond reasonable doubt. The prosecution must prove all ingredients of the charges beyond reasonable doubt.
    
26. The defence filed closing submission and asserted that the prosecution has not been able to prove beyond reasonable doubt that the accused committed the offences.
    
27. The prosecution in their closing submission said that they have been able to discharge the onus and the case has been proved beyond reasonable doubt.
    
28. PW1 gave evidence about the two incidents that allegedly happened in the production office on 9 and 10 February 2011.
    
29. PW1's evidence lacking credibility for the following reasons:
    
    1. In the statement made by her to police she told that both incidents took place while she was checking her emails but during cross examination she told not my emails.
       
    2. She could not tell the court which breast the accused touched. She also could not say which hand the accused used.
       
    100. She reported to work as usual on 10.02.2011 after the first incident previous day. She did not tell to her parents about this incident. Also, she did not complain to any one present in the office including Mrs. Naickar (wife of the accused) who was sitting next to her table.
         
    4. She said that she told this to her boy friend, Mervin but prosecution could call him to give evidence albeit he was listed as a Prosecution witness.
       
    5. She asserted that the accused was in office the whole day on 9 February 2009 but defence witnesses and documents prove that he went to Mana Island that day.
       
30. In Jiko Tanoa v State [2009] HAA 83/085 (apt MAC 1689/06S) 22 December 2009 per Fernando, J: It is settled law that corroboration depends on the reliability of witness and the discretion of a trial Judge or Magistrate depending on the circumstances of each case.
    
31. In state v Appanna Sami [2004] HAA 122/04S 11 November 2004 per Shameem J, "Distress is the evidence of consistency" [Emphasis is added].
    
32. PW1 in this case after the first alleged incident in the morning of 9 February 2011 worked until evening and went home. She did not complain to her parents or any of her relatives. The following day (10 February 2011) she as usual came to work. She complained to police at 1730hrs on 11 February 2011. It appears that PW1 did not show any distress about the incidents. There is not distress evidence in this case.
    
33. The computer is in the production office upstairs where the accused and his personal secretary work. In the police statement PW1 said both incidents happened while she was checking her emails. But under cross examination she said the alleged incidents happened while she was checking company emails. This where PW1 lacking credibility.
    
34. The contradictions and omissions in the evidence of the PW1, as stated above, are not minor contradiction to my mind. They are fatal in trial.
    
35. Adverse inferences cannot be drawn from an accused's partial silence during a caution interview. In the summing up of the case Fiji Independent Commission Against corruption v Mau [2011] FJHC 208; HAC089.2010 (11 April 2011), His Lordship Justice Daniel Goundar highlighted to the assessors at paragraph 77:
    

"[77] Llaisa Bacau caution interviewed the second accused. The record of interview is Exhibit P37. In his interview the second accused said that he is a shareholder in Motibhai Group of Companies. To the remaining questions the second accused elected to remain silent. I remind you that you must not draw any adverse inference against him for exercising his right to remain silent." [Emphasis added]

36. The accused was interviewed by PW2. He was also charged by PW2. The records of his interview and charge statement were tendered as Ex.P1 and Ex.P2 respectively. When the allegations were put to the accused by PW2 he (accused) had stated "no comment". In evidence he said that he told so during the caution interview on the advice of his solicitors. It is to be noted that the accused has exercised his rights during the caution interview. The court cannot draw any adverse inference from this partial silence during the caution interview.
    
37. In this case scene visit was not done and statements of the persons who were present in the office at the time of the alleged offence. PW2 under cross examination stated that the case was not properly investigated. He also said that he was ordered to charge the accused even before the completion of the investigation. The defence produced photographs of the scene (D2 & D3) to explain the scene. The court had to rely on these photographs.
    
38. The accused in evidence told that he was not alone with the complainant on both days. He said that PW2, his personal secretary and PW3 confirmed what the accused told in court.
    
39. The defence witnesses were consistent with each other. Their evidence was not shaken in the course of cross examination.
    
40. PW2 and PW3 denied the suggestion that they are tell what they discussed previously with the accused and asserted that they are telling truth in court. I cannot accept the prosecutions submission that defence witnesses are biased because they are accused's employees.
    
41. I therefore accept the defence evidence.
    
42. I find the accused not guilty on both counts and I accordingly acquit him from both counts.
    

M H Mohamed Ajmeer
Resident Magistrate

Signed at Nadi on this 18th day of May 2012