State v Kumar [2015] FJMC 103; Criminal Case 1957.2010 (28 September 2015)

IN THE MAGISTRATES COURT AT SUVA

Criminal Case No. 1957/2010

STATE

V

NAND KUMAR

Ms. Kumar D. (State Counsel) for the prosecution
Mr. Kumar P. for the accused

JUDGMENT

[1] The accused is charge one Count of Indecently Annoying Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009 more specifically that the accused Nand kumar between January 2009 and June 2010, at Brij lal Store, Cumming Street, in the Central Division, with intent to insult the modesty of Litiana Veisamasama, uttered the words "you have three children already, your husband must be fucking you brains out", " I want to have sex with you", "come suck my dick", "come suck my ball", "I want to lick your pussy", "just give me your pussy", intending that such word be heared by said Litiana Veisamasama .

Further one count of Indecent Assault Contrary to Section 212 of the Crimes Decree No. 44 of 2009 more specifically that the accused Nand Kumar between January 2009 and June 2010, at Brij lal Store, Cumming Street, in the Central Division, unlawfully and indecently assaulted Litiana Veisamasama.

[2] The accused pleaded not guilty to the charge and matter was heard on 3/3/2015. To prove the state case Prosecution called below mentioned witness;

(a) PW-1- Litiana Veisamasama- (The Victim Complainant) .

After this court ruled that there is a case to answer defence called below witness;

(b)DW-1- Nand Kumar – (The Accused of this matter),

(c) DW-2- Jagadish Bhai- Sales Person of Browns Street .

[3] After hearing the evidence of both as it was noticed by the court that one PRITIKA MALA F/N Parshu Ram of Lot Davilewu Housing is needed to come to a conclusion the court issue summons to the same to appear before the court under section 116 of Criminal Procedure Decree.

(e) DW-3- Pritika Mala – Ex employee of Brij lal

The Law
[4]The Section 213 of the Crimes Decree defines the offence as;

"213. — (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.

Penalty —Imprisonment for one year."

[5] Therefore the elements of the offence of Annoying Any Person could be listed as follows. That;

(a)The accused (any person) on the dates as per the charge (identification and date); Uttered any word, or Made any sound or gesture, or Exhibited any object

(b) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim) which is likely to offend the modesty of the victim.

[6] In the case of State v Raikavuka Summing Up [2014] FJHC 673; HAC122.2013S (16 September 2014) Salesi Temo J stated;

"The key to the offence is the act of insulting someone. In other words, it must be shown by the prosecution that, the accused intended to insult the complainant. It is commonly accepted that the easiest way to insult someone, is to swear at them, and intending such swear words to be heard by them, so as to insult them. In other words, if you swear at someone, intending such swear words to be heard by him, and you intended to insult him, you are guilty of the offence."

[7] The "mens rea" or the mental element of this offence is accuses intent to insulting the modesty of the victim. hence merely uttering word dose not sufficient to raise criminal liability but the act of the accused must expressed and come along with the intention or expectation of insulting the modesty of the of the victim. If the word used is filthy indeed there is no much difficulty on adjudication. Even this is not a conclusive rule. As per P.K. Madigan J. insulting of the modesty must be read with the context such as status of person who was aggrieved by act of suspect; time and place (Wise v State [2015] FJHC 75; HAA31.2014 (4 February 2015)).

[8] 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

[9] 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............The assault must not only be "unlawful", it must also be indecent. An indecent assault is one committed in circumstances of indecency. A circumstance 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".

[10] 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"

[11] The onus rests with the Prosecution to prove Beyond Reasonable Doubt each and every element of the alleged offence and that the onus never shifts to the Defense. 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.

[12] Further 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 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. One of the defence counsels 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."

[13] PW-1- Litiana Veisamasama (the victim complainant) gave evidence and identified the accused at open court. She stated that she was worked at Brij lal and company for 2 years' time in 2009 to 2010 and the accused was a manager of the same company. The accused was making comments ever since she met him such as "so your husband must be fucking you every night". But she did not complain as she needs her job. The accused has passed similar comments on several occasions. Further witness said at one occasion when she went to take batteries accused grabbed her over a corner (breast) and has said "give me something like that" but she laughed it off as there was no personal (H/R) officer to report and majority of staff was males. Witness has realized this attitude was escalating after the accused touched her privet part at the shop until that she though it as a joking. Then she reports the matter to police. She said one "Preety" was with her at most of these occasions as both of them were working at the same department and she used to inform Preety about accuses behavior. Preety used to translate when the accused making comments in Hindi it to her. PW-1 said the accused used to joke when he is around and she felt comfortable but most of the times she had no choice than taking it as fine as she needed job.

[14] At the cross examination PW-1 said she has good communication skill. And she was a law student at USP. She confirmed that she used to talk only with Preety about these incidents as she was the only girl at her department. She did not report this to superiors as it was difficult to say to another man what she is experiencing. PW-1 admitted that she did not warn the accused there and then as she was more desperate of her job. She said even she had objection she did not raised it until the accused touched her privet parts. It was suggested by the witness she might be fired if she reported the issue as the accused has more influence over the owners of company.

[15] The prosecution closes their case without calling further independent evidence.

[16] As the prosecution proved the existence of the elements of the charges this court ruled that there is a case to answer and therefore the defence to call their witness.

[17] DW-1 – Nand Kumar – (The accused) called. The accused basically denied the allegations against him. He said in 2009 he was working at Brij lal and company as a sales manager and the victim was one of the staff under his authority. The complainant was having some attitude matters and he had to advise her. He said "...actually there is a lot of people in the shop. if a customer is there and staffs are there If I have to do that my reputation will dissolve....." .the witness suggested due to the fact he was warning the PW-1 for her attitude she made false allegation. He added no sales staff can go to battery room without accompanying another person from accounts department. Therefore allegation of squeezing the breast of PW-1 is a fabrication.

[18] In cross examination the accused continued to denies the allegations. He said PW-1 never warned him about his behavior. He said he would never joke with her or pass comments to her. The accused admits touching back of PW-1.

Q- "On this date when she says that she was placed at new shop and she was taking the money and she passed your office and you touch her privet parts?"

A –"I ONLY TOUCH HER BACK"

The accused added that PW-1 did not say anything to him. He said one Rakesh was handling the H/R matters at the time of alleged incident and denied the fact that PW-1 had no option as H/R to complain. The PW-1 has been terminated for some other reason. Later accused said he did not touch PW-1 at the counter. This court noted the accused was not answered for many questions.

[19] DW-2-Jagadish Pal- (former Shop Manager) gave evidence. He said he was the shop manager in 2009 and 2010 where the complainant used to work. He was holding similar position as the accused and the complainant was working under him and he used to come to work every day. He added accused was marketing manager and normally comes and hardly stays at shop maybe waits few minutes and then goes to office. He confirmed that one jenny had the keys for battery and watch room. Without jenny no one could go inside the battery and watch room. DW-2 said he never heard the accused saying to complainant such as "suck my dick" to PW-1. He said there was no person for H/R matters.

[20] At the cross examination the witness did not give answer for questions about complainant saying "fuck you" to accused in front of him. But he said she usually swears at others. He confirmed that anyone who goes to battery room must accompany one named Jenny as she controlled the stock. He added the complainant was warned and she apologized to him for her attitude.

[21] then the defendants counsel seek orders to issue summons under section 116 of Criminal Procedure Decree to coworker named Pritika Mala as her name was mentioned by the PW-1 and her evidence vital for the judgment. On the 18/5/2015 matter was called for continuation and Pritika Mala gave evidence as DW-3.

[22] Dw-3- Pritika Mala- (former workmate of Complainant) said she was working at Brijlal at year 2009. She knew the complainant of this matter as she was her workmate. Further she said the complainant never made any complaint to her about accuses behavior. She added she never noticed anything wrong from the accused. She said she had given a statement to police stating the same. The directors of the company had the power to hire and fire of employees. There was a person for H/R. and they had a chain to follow if anyone wants to make a complaint. The witness said she is not sure about the fact that she and complainant were targeted by others. She never heard anything such as "fucking" from the accused.

1ST COUNT

(i) Whether the accused has said words amount to insult the modesty of complainant?

[23] Since the accused denied and stating that he never uttered words "you have three children already, your husband must be fucking you brains out", " I want to have sex with you", "come suck my dick", "come suck my ball", "I want to lick your pussy", "just give me your pussy", intending that such word be heard by said Litiana Veisamasama, the prosecution must prove the fact without reasonable doubt. In addition the alleged incident of this matter was face to face annoying using words. Therefore it is less possible to uttering the same without noticed by others around at the shop. This is word against word matter as there is no other evidence to prove it than the words. But as 2 witnesses whom are coworkers of the both parties confirmed under oath that they never heard this words from accused this court has doubt about existence of the fact. Especially when DW-3 whom suggested by PW-1 as person who used to interpret remakes by accused in Hindi as well as shear everything denied this.

[24] Due to above mentioned reasons Court gives benefit of doubt to accused and acquits the accused from 1st count of Annoying .

2ND COUNT

(ii) Whether the accused unlawfully and indecently assaulted Litiana Veisamasama?

[25] After listening to evidence even though the Charge sheet did not mentioned specifically how the accused did Indecently Assaulted complainant. Defence did not raised this issue and let it be open until trial. But this court noticed PW-1 has mentioned 3 occasions which are squeezing breast at battery room; pinched or touch the bum and touching the privet parts at the counter.

[26]When considering the evidence on 2nd count this court noticed that there is no independent evidence on squeezing the breast but DW-2 and DW-3 Confirmed it is impossible for the victim to go inside the battery room without accomplish name Jenny. And the victim said she "just laughs it off". Therefore this court considers it as consented act as the accused has no reason to go inside the battery room without coworker.

[27] On the incident of touching the bum or buttock of the victim even though there is no independent evidence but the accused admitted that saying he only touched the back of the victim. The accused did not explain why he did it or he had consent from victim. This admission is amount to confession. Later the accused denied this fact. This is fatal to the defence as the accused himself contradicting.

[28] There was evidence on touching privet parts of the victim except PW-1 s testimony. That is witness DW-2 was not firm and did not answer the questions on Complainant swearing at accused after he touches her privet parts which is relevant to incident near the shop counter. But Further it is noted by this bench is possible to commit alleged act without noticed by others. This court noted complainant did not mention that DW-3 witnesses this incident but she said it to DW-3 later. Further since this count is listed under Sexual offences. Therefore corroboration is not essential.

[29] Therefor for the above mentioned reasons this court convicts the accused for 2nd count of Indecently Assault by touching victims buttock and her privet parts.

[30] 28 days to appeal

On 28th Sep 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate