State v Chand [2013] FJMC 248; Criminal Case 521.2011 (28 June 2013)

IN THE MAGISTRATE'S COURT OF NASINU
Criminal Case No. 521/2011

STATE

v

PREM CHAND

Police Inspector Mr. Joji Cakau for the State

Mr. Sunil Kumar for the accused

Judgment

[1] The accused is charged with the following offence. The charge read as follows;

CHARGE:

FIRST COUNT
Statement of Offence [a]

RAPE: Contrary to Section 149 & 150 of the Penal Code Act 17.

Particulars of Offence [b]

PREM CHAND on the 8th day of September, 2008 at Nasinu in the Central Division had unlawful carnal knowledge with one Rajeshni Pritika Devi without her consent.

SECOND COUNT
Statement of Offence [a]

RAPE: Contrary to Section 149 & 150 of the Penal Code Act 17.

Particulars of Offence [b]

PREM CHAND on the 16th day of September, 2008 at Nasinu in the Central Division had unlawful carnal knowledge with one Rajeshni Pritika Devi without her consent.

[2] The Accused pleaded not guilty to the charge the matter was heard on 2nd and 3rd April 2013. The defence tendered written submissions on 09th May 2013. The judgment is fixed for today.

[3] The prosecution called following witnesses to prove their evidence. The defence called 3 witnesses including the accused. I now consider my judgment.

Summary of evidence

[4] At the trial, the prosecution mentioned the Doctor whom performed the examination of the victim has migrated to New Zealand. The court allowed that medical to be produced by another doctor to interpret the examination findings. However the prosecution did not call a doctor, but they tendered the medical by consent.

[5] PW1: Rajeshni Pritika Devi: She is the victim of this case. In 2008, the victim stayed with the accused's family. They lived peacefully and she used to call the accused as "father". She identified the accused at the very outset. She stayed in Nadera, the accused's residence. The incidence took place on 08th September 2008. She adduced "Sir on that day I was sick Sir on September 8th. I had asthma and I also had sinus Sir. On that day Sir Chandra Singh dropped me at home and she asked me to rest. And Sir Prem Chand went to drop Chandra at his work. I was sleeping Sir. Sir whilst I was sleeping I felt the Prem Chand's beard on my cheek and I suddenly woke up Sir. And I asked him what he is doing here Sir. And he asked me to keep quiet. Sir after that he tore my clothes Sir and he started sucking my breast. Sir when I wanted to shout he got hold my mouth. And Sir he took off my pants as well. And he had sex with me forcefully Sir without my consent". The PW1 said the accused did 2 times on 8th of September. One was around 9am in the morning and the other was around 12pm. She said he did the same on 16th of September. She said she wanted to tell this to the accused's wife Chandra Singh but the accused asked her to keep quiet. The victim explained why she complained this to the police "Sir after this incident I kept crying and I cried everyday and Chandra Singh asked me why are you crying, she had asked me everyday what had happen to me and why are you crying. Sir when I informed Chandra Singh that Prem Chand as did this to me after that day Sir he the accused person started creating problems at home. Sir he wanted to assault us with the knife. Sir that case was going on and I reconciled in that matter Sir". Medical was marked as Exhibit 1. She said in these two occasions at any time she did not consent to these acts.

[6] Under the cross examination the victim answered questions at length. She said she is not sure how many police statement she has given to the police and she does not remember the dates.

But she admitted it was belated complainant and the reason she did not go to the Police Station because she had no other place to stay and she was also sick, she wasn't able to walk. She said she informed Chandra Singh the incident after that the accused person started creating problems at home. And the accused person's son went to bring the taxi and got the Police Officers in the taxi. Sir when the Police Officer's arrived they asked her what has happened and she informed them of the incident. And then she was taken to the Police Station in the same taxi with the Police Officers at the same night. The witness admitted that she gave the statement after 14 days of incident and that statement was true. The defence tendered that statement as DEX-1 as her evidence is ½ page and statement runs more pages. The PW1 said she started living with the couple in 2008 and she worked for wife of the accused person till today. She said that she did not find any other place to go since. But this happened few months later, she started to live with them. But she cannot say exact time. The witness said that the accused has torn her clothes; it was taken by Valelevu Police. But No clothes were marked at the hearing. She admitted that on 25th of September the accused threatened his wife and has came home drunk. He had argument with his wife and the victim. He picked up cane knife and threatened her. That day, after that incident, the accused was charged for assault and criminal intimidation and assault. But she admitted that they reconciled the charge. She said there is a reason behind this reconciliation. His daughter asked her not to file any case and she said that daughter can't believe that her father could do all this. When they came to know the truth then they informed her to proceed with this rape case. The witness said that she appeared in court for reconciliation but she did not inform the Magistrate that the accused raped her twice. She only informed intimidation and assault. The witness said that she got to know the accused divorced by his children and there are some family matters pending in Nausori Magistrate's Court. The witness was questioned regarding lesbian relationship and her personal life why she did not raise alarm when raped.

[7] PW2: Chandra Wati Singh: She said that she stays Lot 38, Maqbool Road, Nadera. In 2008, she stayed in the same house. She said in 2008, the house was occupied by her, her son Vishal, Prem Chand and Rajeshni Pritika Devi. This Rajeshni Pritika Devi used to work for her. PW2 said "She used to work for me, and one day her friend to my place and inform me that they don't have no place to stay and Rajeshni asked me if I could give her some place in my house. And I informed Rajeshni that I will ask my husband and then I will inform you. I called my husband Prem he said it's ok for them to come and stay in my house. Since she used to work for us and sometimes she used to come to work and sometimes she was absent. And that's why I brought her to home so that she could stay with us and accompany me to work every day....she made a complaint in September that my husband Prem raped her". The witness further said "after the incident most of the days Sir she used to cry. When I used to ask her what had happened and why are you crying she refuse to tell me Sir. And she also informed me that I want to tell you something but I can't at the moment. Whenever she cries Sir I always growl at her that what had happen you have to tell me. Sir we were at work Sir and after lunch she was crying she got hold of the door and she sat down Sir. And then I asked her politely what had happen if she won't tell me then how will I know about her problem. And then she told me Sir. She told me that Mr. Prem has raped her in her house. When I asked Prem he started growling at me Sir...sir she informed me that within two weeks she was raped twice."

[8] PW2 was cross examined at length. In cross examination she said their business is small so they not paying FNPF for the victim. She said the accused did not assist to put up restaurant business her brother assisted. Initially the PW2 said that she was not sleeping with the victim, in the same bed together. But she later admitted PW1 used to sleep together with her and she used to share her bed. The husband used to sleep in another room. When her husband, the accused left the house, she admitted she did not try to stop him. She said that in year 2000 he left them with another lady. She said she had to believe the outsiders (the victim) because most of the times her husband used to lie. She treats everyone as daughters are hers and she wanted Court to give justice on this matter though the victim did not press the rape charge she wanted her husband to be charged. She admitted now they have divorced and property settlement case is going on. But she denied this case is the conspiracy to strengthen the property case and denied the accused property rights. The PW2 denied that she was having lesbian relationship with the victim. She admitted that despite this incident being occurred, the PW2 stays with the victim at the same house up to now.

[9] PW3: Corporal 2771 Aminand Prasad: Witness said he can remember that he charged the accused in 2011 for the offence of rape. The witness identified the accused. He further said the interviewing officer Constable Avish has migrated to New Zealand. Ex-2 is W/sgt mere's statement and Interview of the accused tendered as Exhibit 3. His Charge Statement tendered as Exhibit 4.

[10] In cross examination the Witness said the charging an accused lies with superior and he does not know what was the delay of charging the accused. PW2's statement is also tendered by consent for fairness of justice.

[11] Then, the prosecution closed. Since there was a case to answer the right to call of defence was explained and given. The accused opted to give sworn evidence.

[12] DW1- Prem Chand Pranvir: The accused said the complainant came to stay with them in 2008 and she is not related to them. He denied the allegation that he raped the victim and when the complainant came there was no animosity between him and his wife. The accused told to the court "Sir when she came to stay with us one of our flat was empty Sir and she was staying in that flat with her friend, namely Radhika Sir. When Radhika left Sir then the complainant came to our flat Sir, to stay with us. And she also informed us that she'll be here for only 2 months after that she will leave Sir. But she did not leave Sir and she started creating problems at home Sir. And then she started sleeping with my wife staying in another room as a lesbian. ...And then they reported this matter to the Police Station that I wanted to assault them Sir. And I was in custody Sir for 4 days Sir in the Police Station, in Valelevu Police Station Sir. Then after that Sir I was charged for assaulting the complainant Sir and also criminal intimidation Sir. I had to pay $150 fine Sir." The accused said that the complainant had reconciled with him. The accused admitted sometimes she used to be sick. But that sickness did necessitated wife sleeping with her full time basis. The accused said this lesbian relationship he did know. When he went to the market and he was informed by one Fijian girl that the complainant and his wife were kissing and hugging each other in the canteen. When he came home and asked about this matter then they reported this matter to the Police Station that he wanted to assault them. The accused denied the rape charge. He said his own wife has given evidence against him and he is feeling bad. Because of a stranger he is standing here in Court today. He further said that the victim and wife live still together in their matrimonial property.

[13] In cross examination the accused said he knew the victim from 2008 though they were not related they were staying together in the same house in Nadera and she was working for them and his former wife-PW2. He also admitted during her stay with them sometimes the victim got sick. But she was not sick on 8th of September 2008 but she was home alone she was having little bit of fever only. He admitted at that time he was staying at the same property and he was building the house. He admitted apart from both of them no one at home. But he said that she was in another flat and he was working in another flat. The accused said he did not go to that flat and raped her. He did not see the victim on that day. He said that he was informed by one of the Police Officers not to stay in that property. The accused also informed the Police Officer to ask the complainant to leave the house but she did not like, then the accused was informed that he should leave the house. So, he left the property.

[14] In the re-examination he confirmed that he did not rape the victim. He further said that she is making allegation against him because the complainant wanted to stay with his wife as a lesbian.

[15] The defence with the permission of the court called PW2 as their witness. DW2- Chandra Wati Singh. Through this witness, the defence tendered DE-2 document. That is the PW2's (DW2) own statement which had been given to the police on 23rd November 2008. The DEX-2 was report of assault to the PW2 by the accused. In that the PW2 has requested to the police that her husband to be charged for assault.

[16] There was no cross examination on this report by the prosecution.

[17] DW3-Bhan Pratap Singh: This witness said he knows the accused. Their restaurant is situated beside his restaurant. He said that the complainant and the PW2 were working in the same restaurant. He said "I don't know anything about this family". Further he said he does not know anything about the victim and PW2 his wife and the victim.

[18] There was no cross examination on this report by the prosecution.

[19] The accused thereafter closed his case. The accused filed the closing submission which I have carefully considered.

The Law

[20] Sections 149 and 150 of the Penal Code interpret Rape and Punishment as follows:-

"149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape."

Punishment of rape

"150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment"

The Elements of the Offence of rape

[21] The elements of rape are;

a) Any person

b) Who has unlawful carnal knowledge (penetration)

c) Of a woman or girl

d) Without her consent

[22] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli [2006] HAA 22/06S 15 June 2006 Madam Justice Shameem held that "the offence of rape is made up of two elements. One is carnal knowledge and other is lack of consent". Court note first is "guilty act" which is called as Actus reus and latter is" guilty mind" which is called Mens rea.

Burden and standard of proving

[23] In 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 the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[24] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubtmust 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 as to whether the accused used 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. One 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 guilthe accused."

[25] As Lord Devlin mentioned in the Privy Council in Jayasena v. The reported in 72 New Law Reports 313 (Sri Lanka),

"A f>"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.

[26] 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.

Evaluation of evidence

[27] The victim says that she was raped by the accused in two occasions. One occasion was on the 08th September 2008. On that day she was raped twice. And other occasion was 16th September 2008. She said that she was sick; she could not resist the accused on both occasions. The accused denied the allegation completely. He said that on 08th September 2008, they were in house alone, but the victim stayed in different flat, he did not see her on that day. This is word against word, the victim said he did rape her, the accused said he did not rape her. The court has to believe one party. The victim gives direct evidence with regards to the incident. How strong these direct evidence (positive evidence) and risk of admitting direct evidence was discussed in centuries ago. In Commonwealth v Webster (1850) 5 Cushing (Mass) 295, remarks of Chief Justice Shaw are particularly instructive to this, that is;

"The advantage of positive evidence is that it is the direct testimony of a witness to the fact to be proved, who, he speaks the truth, saw it done; and the only question is whether he is entitled to belief. The disadvantage is that the witness may be false and corrupt and that the case may not afford the means of detecting his falsehood"(Emphasis is mine)

[28] Therefore credibility of the witness is to be tested seriously. The credibility of witness can be measured in certain tests. I consider it now.

Test of Spontaneity

[29]The victim revealed the alleged rape after two weeks to the PW2. The victim was living with them; she had a chance to tell the story that day itself. But she did not reveal it until this lesbian allegation comes against them. On this occasion, the accused threatened them with a knife and the accused son called the police. The accused was charged for criminal intimidation and assault, but not for the rape. The victim appeared before his worship Resident Magistrate Salesi Temo for reconciliation for intimidation and assault, but she did not inform the rape allegation was drop by the police. However rape charge was not pressed initially.

[30] 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)

[31] 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. I hold the victim's evidence cannot pass this test and she had a chance to concoct a story. The delay creates a doubt.

Test of consistency and inconsistency.

[32]The victim said that she was very weak when she was raped by the accused. She was raped on the bed on these two occasions 3 times. She gave two statements to the police. First one was on 25th September 2008, was recorded by w/sergeant 2434 Moimoi. The second one was 24th October 2008, was recorded by WPC 4169 Raulala. Both statements were marked as DEX-1. In 25th September 2008 statement, the victim informed the second incident as follows;

"The second incident was on the 16th of September 2008. I did not go to work as I was very sick. Prem took Chandra to town and I was alone at home. It was about 10am. I was sleeping in the same room and I was lying sideways when Prem again came and made me down facing upwards. I woke up and noticed Prem beside me. I stood up and ran in one of the rooms where he followed me. I ran to the sitting room. Where he again followed me, grabbed me from the dining room and pulled me to the bath room. Prem was wearing shorts, he took off his shorts and he also removed my T-shirt and shorts. Then we had sex on the floor after having sex with me, he left me there and went away" [emphasis is added by me]

[33] Having sex on the bath room floor is a noticeable and memorable event. It cannot be easily forgotten to anyone who had this experience. But the victim cannot recall this incident that she was raped on the bath room floor in one occasion. Even she gave second statement, one month later to same incident, but she did not say that she was raped on the bathroom floor. There are major discrepancies in her police statement (DEX-1) and her evidence. It cannot be believed by prudent man.

Test of probability and improbability.

[34] In above police statement shows that the victim was not that much feeble and could able to run. Then why she did not scream or bite the accused. The victim said that she was fear of expel from home if she revealed the story. Then, why she revealed this story when matrimonial issue comes? It is notable that she still stays with the accused's former wife and this incident give raise for the breakdown of the of marriage. As defence clearly pointed out they have been married for past 17 years but this incident led their separation. The wife (Pw2) did not take the husband's side although they have two grown up children and lived together for 17 years. The PW2 said that there were some assaults and incidents [Dex-2], but I note they did not separate, why this juncture PW2 decided to separate?

[35] Is this story fabricated by the victim or on the instructions of another party (PW2)? In Reg v Henry [1968] 53 cr. app Rep 150 at 153 his Lordship Salmon LJ discussed the story of concoction in sexual cases as follows;

"...human experience has shown that in these courts girls and women sometimes tell an entirely false story, which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate and sometimes for no reasons at all" [emphasis is added by me]

[36] I now consider reason why the complainant lodged this complain against the accused. The victim in her 25-09-2008 statement told to the police the reason as follows;

" This incident came to light when yesterday, Wednesday 24th September 2008, at about 7pm, Prem came home drunk and started swearing at me and also carrying a cane knife threatening me. He also said that his wife Chandra is having affair with me and that's the reason his not having sex with his wife. He told me that I am a lesbian. I was so annoyed and then I had to tell Chandra what Prem did to me that he raped me that is how this incident came to light" [emphasis is added by me]

[37] If this lesbian issue was not confronted the victim would not have told this story to the PW2. It is seen that the PW2 was not having or refuse to have sex with the accused-husband. DEX-1, the second statement, which was made on 24th October 2008, the victim said;

"Today when I was at our restaurant with Mrs Chandra Wati, our next shop sales lady, there name Tarai used to see us hugging, with Chandra Wati and I used to kiss Mrs Chandra Wati in loving care like. I am so happy to be with a mother who cares about me that's how we treat each other. Then Tarai asked Mrs Chandra Wati why we always like this, then she told her that's how treat this Rajeshni like my real daughter. Then Mr Prem Chand came inside to have his lunch, then he interfered us and told Tarai sometimes " yes, this two, myself and Mrs Chandra Wati sleep together and hugging each other and kissing in front of me. "

[38] This evidence shows that PW1, the victim and PW2, the accused's wife has some kind of extra affection to each other and it was noticed by general public such as Tarai-next door restaurant girl. If this was real daughter and mother affection these hugging do not attract that much to others. It is true that the victim is an asthmatic patient but it did not compel to sleep with the victim as the victim was 23 years old grown up adult. Thus, it is very dubious that this allegation was probable. Thus, it did not pass this test as well.

Test of independency (interest or disinterest)

[39] The victim totally depends on PW2 at this stage. She stayed with them initially and the accused left the home after this incident. Therefore the victim has major interest to the case and she has strong reason to fabricate a story. Therefore the victim's story is in question.

[40] The defence tendered DEX-2 to show that the victim had not shown any interest to undergo the medical examination. It shows sometimes doctors were not available and other time the victim was busy and she could not attend the examination. However by consent, though doctor was not called, the prosecution tendered the medical examination report as PEX-1. In that A [4] shows the background that the victim had given to the doctor. "Alleged being raped by one Prem Chand sometimes last year". The victim told history to the doctor. Doctor notes "paitent claims to have been raped by his landlord-Prem Chand on two separate occasions in their house last year. Says that Prem Chand approached her while she was sleeping and sick in bed, fondled her breasts, covered her mouth with his hand and penetrated her. He repeated this was again on same afternoon and next day and warned her not to tell anyone". The two acts of rape were done within two weeks duration and not the next date. But the patient mentioned that raped was occurred two consecutive dates which is contrary to evidence. The doctor notes vaginal examination as follows; "No evidence of traumatic laceration. Hymen not intact-patient delivered son 5 years ago" [See D (12)]. The doctor opines "unable to decide at present" [See D (14)]. Thus, it is apparent that the doctor cannot say whether she had been raped or not. The PW2's evidence is a repetition and it's not amount to corroboration. There is no corroboration by the medical report as well. Mr. Sunil Kumar emphasis that the corroboration is needed for this case as it was put under old penal court. But, the common law, judge made law, in the case of Seremaia Balelala –v- The State FCA Criminal Appeal No. AAU0003 of 2004S it was decided that corroboration is no longer required as a matter of practice in these type of offences. (Followed in Eliki Mototabua v State HAC0020 of 2002 and affirmed in State v AV HAC 192 of 2008). Therefore this argument is without merit. Yet, the prosecution has to prove its case.

[41] In Attorney General of Hong Kong v Wong Muk Ping (1987) 2 W.L.R. 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)

[42] I should revisit the standard of proof at this juncture which is mention in Miller v Minister of Pensions [1947] 2 All ER 372. The standard of proof to convict the accused in a criminal case clearly discussed in that case 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."

[43] This is a serious charge, if convicted long term prison sentence is attracted. But as I noted, the accused has not liability to prove his innocence. The prosecution did not reach the certainty that the victim had been raped by the accused. Further it did not carry high probability that the rape had been occurred. I hold the prosecution failed to prove its charge beyond reasonable doubt.

Conclusion

[44] The charge against the accused has therefore been not proved beyond reasonable doubt and I find him not guilty to the charge. The accused is acquitted and discharged.

[45] 28 days to appeal.

On this day 28th June 2013 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu