State v Upadhyay [2013] FJMC 244; Criminal Case 1297.2012 (21 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1297/2012

STATE

-v-

OM PRAKASH UPADHYAY

Police Constable Ravi Narayan for the Prosecution
Mr. Filimone Vosarogo (MAMLAKAH LAWYERS) for the accused

Judgment

1] The accused is charged with following count;

CHARGE:

Statement of Offence [a]

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

OM PRAKASH UPADHYAY on the 25th day of August 2012 at Nasinu in the Central Division unlawfully and indecently assaulted one Cynthia Raya Khan.

2] The case was heard on 08th January 2013.

3] To prove this charge the prosecution called following evidence.

4] PW1: Cynthia Ria Khan, she said That she stays in 19, Maqbool Road, Nadera. They stayed for last 2 ½ years in that property. They are renting and their landlord is Mr. Rasjesh Lal. There are 4 flats in that property and they stay at the back bottom flat. She said that she can recall 25th August 2012. They all were at home. The top flat was occupying by the accused at that time. The accused came one week before this incident to occupy that flat. She did not know him really but owner just introduced each other, then the exchange “hellos”. On that day afternoon, they were at home. She was playing with her dog, the accused said Hello to them. Then, he talked to her and what she was studying. She replied she was doing Science degree at USP. Then, she went inside. When, she came outside the accused was outside. Then, he invited her. The victim told “Then, when I came outside, he was outside. He said why don’t you come upstairs and talk to him. I need someone to talk to, my wife is not here, I am alone here. I said I was busy I have my prayers” . The victim did not go upstairs. The witness said , at 8.30pm the accused came outside to lock the gate. Her mother and brother were outside. The accused asked them about her. Then, she came outside and her mum allowed her to go upstairs. The PW1 adduced “When I went up no one is present, He told me to sit behind him. Then, I did so. That was in living room. Then he kissed my right cheek. I thought that was a welcome kiss. I was sitting next to him but not very closely. I was wearing a ¾ pants and T shirt. ... Then, he started talking to me about my school. He also asked about my family as to what my mother was doing. I told him my mum was a beautician. Then, he asked if my mother could do free facial for him. ... After that he held my shoulder and he asked me to sit closer to me. I sat same position. Then he asked me if I would like to have a coffee. I said no thank you.... He held my hand and insisted I should see the house. When he showed me the house, near his room, he said I could come upstairs and study in his room. We were just going through the rooms.... When we reach his room, he said I should come and sleep with his room. It was in Indian Hindi ...we did not enter the bed room, when I heard that, I was shocked. I said ”what”. Then, he changed the topic. He started asking my school again. He kissed me on the cheek again, said you are just like my daughter. We were returning from the room. I was confused.... Then we came in front, sat. We were sitting. All the time he kept on holding my shoulder. .. After that he held my shoulder with my left hand with his right hand he rubbed my thighs. I did not do anything. Then, he kissed my cheek again. He touched my breast and stomach and said that my body was like mother of two children. I was very scared. I wanted to run away from there. But he did not leave my shoulder and he rubbed his cheeks on my cheeks. I told him my mother must be waiting. I should go. After that he left my shoulder. I came out of there, I came home. I went directly inside my house and I started crying. Then my mother came and asked what happened and I told her. I told her that he was touching me and I did not really like that. I told everything to the mother” . She said when the mother heard, she got angry. Then her brother came. The brother talked to the accused. He denied. Then the neighbor came and he took them to Valelevu police station.

5] In cross examination she said neighbor came out at about 10.30pm. She stayed only ten minutes. They stayed about two hours before going to Valelevu police. Their neighbor took them to the police. The witness said when he first kissed her cheek, she did not feel any fear because the accused was old like her grandfather. So, she did not feel uneasy. When he did things she was uncomfortable, but she did not walk away. The defence suggested the whole story was concocted by her, her mother and her brother and they demanded $5000 from the accused. But the witnesses refused the suggestion.

6] PW2: Veena Kumari: She confirmed the PW1’s story. She said that when they were in outside the house, the accused came and asked where is the Student? She said him that she is watching TV. They were drinking Kawa, Fiji made drink at that time. She invited the accused to join them, then he said no and asked daughter to come up stairs and chat with him as he is alone. Then, one visitor came for him. She opened the gate on the accused’s invitation. The visitor came and went away. Then, she called the daughter and said that uncle is waiting. She sent daughter to up stairs. The accused did not come down; he was standing all the time in the terrace (balcony). The daughter went. PW2 said that she could not see them, but she heard that they were talking. She saw the accused room’s lights were on. They daughter spent 10 minutes up stairs, she came back and went straight house. She was crying and washing her face. She said “I asked what did uncle say? She was washing her face, she was crying. I asked what’s wrong. Then she told me uncle was rubbing my cheek, toughing my breast and thighs. I was hugging her, I can’t believe it, and then my nephew came in. I told my nephew. This man did something to Cynthia. Then my nephew asked what happened, she said whole story”. The witness said then her nephew went up stairs and asked what he did. He was angry, she said him to calm down, and the old man refused and closed the door. Then next door neighbor came after movie. She told what happened. Then neighbor’s husband tried to talk to the accused. But he did not open the door. Then, neighbor said I will provide transport, we will report matter to the police. Then, they reported.

7] In cross examination, this witness admitted she sent her daughter to somebody which she does not know. But the witness said he was old man, gentleman with good relationship with all tenant. So, she allowed her daughter to go. She said that she heard conversation between the old man and her daughter, but daughter did not scream or alarm. The defence suggested that she wanted that the accused to go out, then she can have the accused’s flat. But she denied. She said the accused’s flat was $100 and she pays $680. The PW2 said that her nephew did not ask any money from the accused.

8] PW3: Ziad Ali: He said he stays with aunty and sister. When he was having the accused as where is the student? The accused said he wants to talk to the victim. The aunty allowed sister to go. The accused is lecturer at FNU and they thought he will help her in studies. So, his aunty asked her go up stairs. After 15 minutes, sister came down. She went straight to the mother and started telling what happened. He did not know what was talking. Aunty told him later. Then, he heard the story. He went to the accused’s flat. The accused did not come outside. He said “When, I asked Mr. Upadhyay, is he really did it to my sister, he replied he only tapped her shoulder. “

9] Under cross examination the witness said that he cannot see the sitting place of his sister and she was crying when she came. He said that he was not so angry and went up stairs. The defence suggested this witness demanded $5000 from the accused. The witness denied but he said the accused offered $500 to Police officer Jone to settle the case.

10] Thereafter, by consent, the accused’s caution interview and charge stamen tendered as Exhibit 1 and 2.

11] Since there is a case to answer, right to call defence is explained. The accused opted to give sworn evidence.

12] DW1: the Accused: Dr. Om Prakash Upadhyay, He said he is from India, Uthhtrapradesh, Varanasi. He is a professor and advisor to the vice chancellor of Fiji National University. He is working on developing medical facilities, staff and studies. He got offer on 01-06-2011 and it is a three year contract. He said on 05th August 2011 he shifted 19, Maqbool Road, Nadera. He explained the description of the house and the vicinity. He shared with the landloard till 22nd August 2011 and he then moved to this flat on 23rd August. He said he can recall 25th August, the day, incident happened. Around 6 to 6pm he was having see view at the balcony. Then he saw a dog barking and he saw the girl was sitting back towards him. She said “I never saw her before, I never knew her before, I waved the dog and she turned back and wished me good evening uncle, she said the day is very boring today. Then I asked why boring, you must be a student you go to your studies, read your books. She said I am a student of USP, Are you a Dr? I said yes, she said I am a student of Biology (Bsc in USP). Then she further requested me can you guide me some subject? I quietly replied, why not you tell me in advance, I said I can. She said should I come with my books after 15 minutes? I said one of my visitor is to come not now. Then visitor came around 7.30pm. “. The accused said that visitor, Mr. Edwin, one of B.com student from India came and he had dinner with him. The visitor went around 8.45pm; he came down stair with him and locked the gate. He said then he saw one lady, making and drinking something. The lady invited him “Dr. why don’t you join us.” He asked “what is this?” She said that is local drink. He express I don’t drink thank you. They were in the porch and he was in his porch, the lady asked her daughter wants to talk to him. Then she informed the lady “you may come with her”. The accused adduced “I never knew this is a preconsidered one. I went my sitting room. The door is open. Around 9pm, 15 minutes, she came, she came and sat on my sofa, we were sitting by the side. I asked her where is your mum? She said she is taking grog with her brother. It is a three seater sofa. There was middle empty seat. When she come I asked which class you are studying. She told Bsc with Biology Group. I asked her name. she said Cynthia. She is the girl who gave evidence” . The accused further explained the dialogue that they had that evening. The accused explained that the victim told they wanted to rent his flat, but Rajesh the owner quoted $1000. He said “that is the rent, I am paying.” The victim explained their hardships to the accused. The accused told that she said “see you are alone in a house such a big flat three rooms. Because you are rich, you can pay and we could not afford”. The accused said this sentence really touched him. Then he told to the court “if he is your brother, then he can come and sleep with me. Then she said why you don’t give me a room to study here. I declined. I said further, No, my wife is to join me after marriage of my daughter. If you want to study, I can teach you. She wanted to see inside. She went inside with me. I offered Ice Cream or Coffee. She talked many things about herself. I did not touch her. I did not grab her hand. She is younger than my daughter. She said I have a boy friend. I said what is your age? She said 20 years. I told her you should concentrate on your studies. Does your mother know this? Then, she said her mother knows it, but she is very much against, because he is a Muslim”. The accused said she stayed 35 to 40 minutes. The lights were on that time. Porch lights were also on. The accused said the victim then informed she will study two days after she will consult him. The accused said the victim went happily. The accused did not say in court though she stayed 40 minutes at his place, she did have an ice cream or coffee or did not.

13] The accused further said that he did not kiss her at anytime. He did not touch her breast, thighs, stomach. He just touched her shoulder and head. He did not offer her to sleep with him. He further adduced “then she went down. I closed the door. I was watching TV, and then 20 to 30 minutes later somebody was knocking. I was in my internet. I was scared, outside was dark. It was PW3. PW3 told him “you had kissed my sister; you have talked her to sleep with you. What nonsense you are talking about to her,” he said that he denied. PW3 replied to him “you have done it, you give us $5000, and otherwise we are going to implicate a case against you”. But he refused. The accused said then Pw3 asked $3000. Then the accused lost temper. He said “get out from house, do what you feel like”. The accused said that he did not know Jone. And he did not offer $500 to him. He said that he is sending money to India for his personal commitments; he did not have money to bribe.

14] Under cross examination the accused said the girl came alone , but he did not kiss her or hug her. They were sitting in the Sofa. The distance was yard length. He admitted they went to see whole house. He was in front and girl was in behind. The accused said after conversation he tapped her head and said “Ok, good luck, you study and we‘ll meet”.

15] Thereafter defence closed the case. The defence has filed closing submission. I am mindful of it.

16] It is clear the prosecution has the legal liability to prove their charge beyond reasonable doubt. Woolmington v DPP (1935) AC 462 held that;

“no matter what the charge or where the trial, the principle that the Prosecution must prove the guilt of the accused is part of common law”. The burden of proof of the accused person’s guilt beyond reasonable doubt lies with the Prosecution.

19] In this case State v Seniloli [2004] FJHC 48; 2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors:

“The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused”.

20] As Lord Devlin mentioned evidentiary burden of proof in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. ( Emphasis is mine)

21] The test is objective and therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted as well.

22] I now consider elements of this offence. The offence of indecently assault is stated at Section 212 of the Crimes Decree, it reads:

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

Penalty — Imprisonment for five years.”

23] Elements of Indecent Assault has been explained by His Lordship Justice Temo in State v Namado - Summing Up [2012] FJHC 1172; HAC094.2010S (4 June 2012). Those are;

The accused;
Unlawfully; and
Indecently
Assaulted
The female complaint

24] In that same case Justice Temo define assault as follows;

“To assault someone is to apply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply unlawful force to the person of another. Likewise, to touch and squeeze someone’s breast and/or vagina, without that person’s consent, is to apply unlawful force to the person of another. It wouldn’t amount to an assault, if a doctor examine a patient by touching and squeezing a patient’s breast and/or vagina with that person’s consent, in the course of conducting a medical examination. To constitute an assault, the application of force to the person of another must be done with no legal justification whatsoever, that is, it was done unlawfully.

The assault must not only be “unlawful”, it must also be indecent. An indecent assault is one committed in circumstances of indecency. A circumstances of indecency is what right minded people would consider indecent for example, an older man touching and squeezing a girl’s breast and/or vagina, without her consent. It is therefore essential for the Prosecution to prove beyond reasonable doubt that the assault was not only unlawful, it was also indecent”.

25] In Blackstone’s Criminal Practice, (1993 Edition) at Paragraph B3.B4 described the term “indecent assault” as follows:

“The test indecent assault is primarily objective. An indecent assault is defined as an assault committed in circumstances of indecency. Spoken words may constitute circumstances of indecency on the part of the person using them. If the circumstances of the assault are incapable of being regarded as indecent, the assault cannot become indecent because of some secret motive of the accused. Where the circumstances are such that the assault could be considered indecent, it must at least be proved that the accused intentionally assaulted the victim with knowledge of the indecent circumstances or being reckless as to the existence of them. Court (1989) AC 28. This means intention or recklessness with regards to circumstances which are shown to contravene standards of decent behavior with regard to sexual modesty....whether or not the victim appreciates the fact of the indecency is irrelevant”.

26] In R v Court [1988] 2 ALL ER 221, [1989] AC 28, 36, the term Indecent had been defined as an act “offensive to the contemporary standards of modesty and privacy”. Lord Ackner said;

“Assault” consists of an act which involves the violation of another’s person, however minor: and an indecent assault is one which involves conduct which “right–minded persons” would consider to be indecent according to contemporary standards of modesty and privacy”

27] The parties do not dispute the date, time and place. The accused has been identified by the victim and there is no difficulty or dispute in identifying the accused. The date of incident was 25th August 2012 around 8pm to 9 pm. It is seen the evidence of PW1 and the accused words against words. The victim says that the accused indecently assaulted her by kissing, touching her. The accused admitted that the victim was with him at the material time. But he denies the assault but he admitted he tapped the victim shoulder and head. The allege assault was that the accused kissed her cheek and touched her breast and thighs. If the accused did these acts it comes within the purview and circumstances of indecency. The act itself proves indecency. These are sacred places of women and no one can touch or fondle it without approval of them.

28] When the word against word evidence comes, then the court should look test of credibility of each witness. Like doctors diagnose illnesses from symptoms, the court diagnoses truth of witnesses by certain tests. When the issue of credibility concerns following tests are to be applied.

Test of Spontaneity

29] In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonably be expected and that here is no one else who can decide it. (Emphasis is mine)

30] In R v Cummings (1948) All E.R. 551 Court of Criminal Appeal held that it was for the judge who tried the case to decide whether the complaint was made as speedily as could reasonably be expected. Once the trial judge holds that it was an early complaint, an appeal court could not interfere with the exercise of his discretion as to the admissibility of the evidence

31] The victim, PW1 reported the matter to the police as soon as possible. It appears that there is no time to concoct a story. But, the accused testified that this is pre considered (premeditated story) story to take ransom from the accused. The prosecution story reveals at once they did not go to the police. The PW3 went to the accused place to inquire what happened. He denied that he demanded $5000 the accused. But in contrary, he said the accused tried to bribe the investigation officer. The court notes that the accused caution interview had been recorded on 28th September 2012, after one month of the incident. Why so delay if he did not do something. This is a grave crime, as normal practice police arrest the accused and produce before court without granting bail. The lethargic manner of the investigation shows something underneath the scene. The victim reported the incident to the police that day itself and they were induced by neighbor. The neighbor came after movie and they have no interest in this case. I therefore hold the victim’s evidence pass this test.

Test of consistency and inconsistency.

30] It should be noted that the evidence of the prosecution witnesses are mostly in line with each other; there are no omissions or contradictions by the prosecution part. There were minor contradiction on PW3’s evidence and his police statement. However no one case photographic memory of the incident. . This was emphasized in Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983(1983 AIR 753, 1983 SCR (3) 280) Thakkar, M.P, his Lordship held that “By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident.” In this case the prosecution’s evidence passes this too. The accused has made brief statement to the police and he had not mentioned vital facts that they have discussed in their conversation. He gave his statement after one month and there are possibilities to coach and concoct a story. The accused’s evidence fails the test invariably.

Test of probability and improbability.

31] The victim said she was invited by the accused and she did not want to go. They only exchanged “hello”, that means there is no strong friendship between them. The accused in his evidence said that he has never seen and talked the victim. He further said the victim wanted to come and meet him to get guidance. But after seeing inside the house the victim wanted to leave and she said first she study and come. She has told very personal things to the accused that she is having Muslim boy friend and her mother is objecting to that affair. Not only that the victim told that he is rich that they cannot afford the rent. They met first time on that day. The victim is 21 years at that time and the accused is 75 years (according to the police statement) old. Is it probable the girl told such personal things to a stranger? This is a lie uttered by accused in the witness box. The accused whole evidence collapsed and the story of the accused is not probable. The accused lied to the Court. The common law allows if the accused lied to court in the witness box is capable of corroborating the victim’s story. In Reg. v. Lucas (Ruth) [1981] QB 720 (14) to fulfill Lord Lane CJ stressed:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to material issue. Thirdly the motive for the lie must be a realization of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behavior from their family. Fourthly the statement must be clearly shown to be corroborated, that is to say by admission or by evidence from an independent witness”

32] The accused’s evidence fulfilled all these requirements. But it should be noted in Seremaia Balelala v State [2004] AAU 3/04 (appeal from HAM047/03S), 11th November 2004, the Court of Appeal held “there is no express statutory requirement for corroboration in the felony of rape or other sexual offences. It would be a matter for discretion, in accordance with the general law, for a judge to give a warning or caution, wherever there was some particular aspect of the evidence giving rise to a question as to its reliability.” (Emphasis is mine)

33] This is a sexual offence, but under new trends of law the corroboration is not necessary. But in this case the lied uttered by the accused corroborates the victim’s story. The victim’s story is a probable and the accused story is not probable. I cannot believe that the victim told her very personal things to the stranger like accused. Further they have big age gap and they went to get guidance from the accused for exams not to chat with personal problems. I therefore reject the accused evidence forth with, I hold this evidence is untruth.

Test of independency (interest or disinterest)

34] When I apply this test, I must consider PW2, Pw3’s evidence. They are close relations of the victim. But they don’t have any grudge and the witness has no interest to put the accused in peril. The story of ransom , which I have dealt with earlier and cannot be acceptable.

35] When a court decides a case, it should consider evidence in whole. In Attorney General of Hong Kong v Wong Muk Ping [1987] 2 WLR 1033 the Privy Council observed as follows:-

"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)

36] In the light of above evidence and rules of evidence, I now consider the standard of proof. In Miller v Minister of Pensions [1947] 2 All E.R. 372, the standard of proof to convict the accused in a criminal case is clearly discussed by Lord Denning. He went on saying:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."(Emphasis added)

37] In R v Kilbourne [1972] 3 All ER 545 Lawson J directed the jury, as to what constituted as indecent assault, in the following terms:

"It means a deliberate touching of somebody else's body, clothed or unclothed with an indecent intention. That is to say a deliberate touching which is activated by some indecent purpose".

38] In this case the accused first kissed her cheek. The victim thought that was welcome kiss. The accused held her shoulder. Then accused invited to see his house, when they were walking the accused informed she can sleep with him in his house. Thereafter, the accused touched her breast and thighs. Touching the breast and thighs of an unknown firstly seen woman on that day clearly indicates indecent intention. This constitutes the indecent assault. The accused misjudged the attendant circumstances. The accused may have thought she might agree to his suggestion or later on because of his money and the position. But the victim did not have any intention and as she said she was confused and shocked by this incident. When, I evaluate the evidence, I have no doubts in my mind that the prosecution proved its charge beyond reasonable doubt.

39] The Accused is guilty as charged. I now call mitigation before sentencing.

40] 28 days to appeal

On 21st June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra,
Resident Magistrate-Nasinu