State v Narayan [2013] FJMC 414; Criminal Case 965.2011 (2 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 965/2011

STATE

V

PREM CHAND NARAYAN

For Prosecution: Mr. Nath (DPP)
For Accused: Ms. Vasiti

JUDGMENT

1. The accused has been charged with the following offences. Since the victim is a Juvenile her name is suppressed and identified as NR in this Judgment.
   

Count 1: Indecently Insulting Any Person: Contrary to Section 154(4) of the Penal Code, Cap 17.

Particulars of Offence

Prem Chand Narayan between the 1st day of March 2009 and the 31st day of March 2009 at Suva in the Central Division, with intention to insult the modesty of NR, intruded upon the privacy of NR by doing an act of a nature.

Count 2: Indecent Assault: contrary to Section 212(1) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

Prem Chand Narayan between the 17th day of May 2010 and the 20th day of August 2010 at Suva in the Central Division, unlawfully and indecently assaulted NR.

2. The accused pleaded not guilty to both counts and the trial was taken on 14 October and 16 October 2013.
   
3. For the prosecution's case 4 witnesses were called and for the defence the accused gave sworn evidence. By consent the caution interview and the charge statement were tendered as Exhibit No. 1 and Exhibit No. 2 respectively.
   

SUMMARY OF EVIDENCE

4. For the prosecution following witnesses were called to give evidence in the Court.
   
   1. PW-1 – NR (Victim)
   2. PW-2 – Pushpa Dass (mother)
   3. PW-3 – Arvin Prasad
      
5. PW-1 (RN) in her evidence said that in 2009 she was a Form 3 student in Dudley High School. The accused called her to his office. He asked her if she loved him and then asked if he could kiss her. At that time his hands were around his waist. PW-1 was scared. She told these to her friend and Master Prasad in 2010.
   

In 2010, she was near Principal's office and the accused came and touched her buttocks. PW-1 also identified the accused in Court.

In cross examination PW-1 said in 2005 her Agriculture teacher was Mr. Arvin Prasad and when that incident happened in the office some student were outside. She also denied lying about the incident in 2009. She also said in 2010 near Principal's office the accused touch her buttocks.

6. PW-2, Mrs. Dass in her evidence said on 11 April 2011 she received a call from the accused asking her to come to school. When she met him he told her PW-1 was not coming to classes on Fridays. When she enquired about this from PW-1 on 14 April 2011 she told her about the two incidents. She also told PW2 that she did not tell her about these earlier because the accused threatened her. PW1's birth certificate was tender as Exhibit No. 3 through this witness. PW-2 reported this matter to the police. In cross examination too PW-2 said the reason given by PW-1 for not telling her everything was because the accused threatened her.
   
7. PW-3, Mr. Arvin Prasad said in 2011 PW-1 said about the incident to him. In cross examination PW-3 said he did not have any problem with the accused and he never told PW-1 to lie about these two incidents to the police.
   
8. Thereafter the Prosecution closed the case and being satisfied with the evidence the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree.
   
9. The accused opted to give sworn evidence and in his evidence he denied both incidents. He also said he called PW-2 about her daughter not attending classes on Fridays. In cross examination the accused stated that in 2009 PW-1 came to his office with Mr. Prasad. The defence did not call any other witnesses and also closed their case.
   
10. Both parties opted to file closing submissions but failed to do so. Therefore based on the evidence in the trial I am going to pronounce my judgment.
    

The LAW

11. The accused has been charged with one count of Indecently Annoying a Female contrary to section 154(4) of the Penal Code and one count of Indecent Assault contrary to section 212(1) of the Crimes Decree.
    
12. Section 154(4) of the Penal Code provides that:
    

"Whoever, intending to insult the modesty of any woman or girl, 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 such woman or girl, or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty, is guilty of a misdemeanour, and is liable to imprisonment for one year."

Based on the particulars of the offence the elements of the offence are:

1. The accused
2. Intending to insult the modesty of PW1

100. Intrudes upon the privacy of her by doing an act of a nature likely to offend her modesty.
     

13. Section 212(1) of the Crimes Decree states:
    

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

14. Elements of Indecent Assault has been explained by His Lordship Justice Temo in State v Namado - Summing Up [2012] FJHC 1172; HAC094.2010S as:
    

The accused;

Unlawfully; and

Indecently

Assaulted

The female complaint

15. In that same case Justice Temo define assault as follows;
    

"To assault&#160one is to applyapply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply uul foo theon of a of anothenother. Likewise, to touch and squeeze some 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 ee a pe 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 coute an assault, the application rc force to the personerson of another must be done with no legal justification whatsoever, that is, it was done unlawfully.

The assau60;must not only be "ube "unlawful", it must also be indecent. An indecent assault is one commitn circumstancetances of indecency. A circumstances of indecency is what right minded p would consider indecendecent for exa ple,lder man touchiouching 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 unlawful, it was alas also inde#160;".

16. IckstoCriminal Practice, (1993 Edition) at Paragraph B3ph B3.B4 described the term " inde;indecent lt" as foas follows:
    

"The test indecesault is primarrimarily objectine. An indecent assault isneefis an&#1sault 160; committed in mstancesances of indecency. Spokenpoken words may constitute circumstances of indecency on the part of the persong the the mstances of the assault are incapable able of bein being regarded as indecent, ent, the assault&#1annot become &#16 indecent&#160ause of some some secret motive of the accused. Where the circumstances are such that the assau60; could beidere60;in60;int, it must at least be proved that the the accusaccused intentionally assaulted the victimictim with knowledge of the indecent; cirances or beingbeing reckless as to the existence of thof them. Court (1989) AC 28. This means intention or recklessness with regto circumstances which are shown to contravene standards of decent behavior with regard to d to sexual modesty....whether or not the victim appreciates the fact of the indecency is irrelevant".

17. In landmark case of Woolmington v DPP (1935) AC 462 Viscount Sankey LC observed 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".
    

18. In State v RODNEY AUGUSTINE FONG HAC 300 OF 2011S His Lordship Justice Temo in his summing up defined the burden of proof and standard of proof in criminal trial as follows:-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty."

19. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as '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 the shadow of the doubt. The law would fail to protect the community if it admitted 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 favor, 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, but nothing short of that will suffice.'

Analysis of the Evidence

20. First I will consider the prosecution evidence. The main witness for the prosecution is PW1 (NR), the victim in this case. She said in 2009 the accused called her to his office and asked if he could kiss her. Also at that time his hands were around her waist. She was scared. The prosecution is relying mainly on this evidence to prove the count of Indecently Annoying Female.
    
21. PW1 also said whilst she was waiting near the principle office in 2010 the accused touched her butt. Again if this claim is accepted by me it would be sufficient to cover all the elements in the Indecent Assault.
    
22. PW2 and PW3 in their respective evidence said PW1 (NR) informed about these incidents in 2011 to them. Their evidence shows that PW1 made complaints about these incidents. But the complaints were made around 2011, sometime after the incidents and can't be considered as recent complaints.
    
23. Normally in sexual offence cases a court would consider about recent complaint as to show the consistency of the evidence of a victim. Also this would be helpful to show that the allegation against an accused was not fabricated.
    
24. In this case according to witnesses the complaints were made on 2011 sometime after the two incidents. But the reason for delay according to witnesses was PW1 was threatened and was afraid. This was also confirmed by PW1 in her testimony. I am prepared to accept this explanation for belated complaints considering the age of NR at that time.
    
25. PW1 was cross examined vigorously by the learned counsel for the accused about these claims. She was even shown her out of court statements/police statements in the cross examination. Even though she is a juvenile she answered clearly and confidently. There were no significant contradictions raised in her testimony and her evidence was consistent. I am satisfied with her demeanor in the Court also.
    
26. I am also mindful that pursuant to section 129 of the Criminal Procedure Decree presently there is no need for any corroboration of the victim's evidence in sexual offence cases.
    
27. Now I would consider the evidence presented by the defence. Only the accused gave evidence and he rejected these allegations. In addition the defence was implying that PW3 (Master Prasad) had some grudges with the accused.
    
28. The Defence also contended that because the accused complained PW2 about her daughter these allegations arose against him. But I am not satisfied with these claims from the defence. I do not see any reason for PW1 to make these kinds of serious allegations against the accused just because he complained to her mother about her not attending classes.
    
29. Based on the above mentioned reasons I am satisfied that the prosecution has proved both these offences beyond reasonable doubt.
    
30. Therefore I find the accused guilty to both these counts and convict him accordingly.
    
31. 28 days to appeal.
    

02 December 2013

H.S.P.Somaratne
Resident Magistrate, Suva