IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.959/2012

STATE

vs.

AIMAN KUMAR

Sgt: Jiten Singh- Police Prosecutor 
Mr. S. Kumar for The accused 

Judgment

[1] The accused Aiman Kumar, Accused, is charged with one count of the offence of: Indecent Assault on Female Contrary to Section 154 of the Penal Code Act 17. The accused pleaded not guilty and the matter was fixed for hearing. Trial commenced on 13th of May 2014 and the Prosecution called 3 witnesses and the case was adjourned to 21st of July 2014 for continuation of hearing. Upon closer of the Prosecution case both parties did an oral submission and Court ruled a case to answer. The court asked defence to produce its case. The Defence Counsel adduced the evidence of two witnesses including the accused. 

[2] The accused is charged as follows:- 

INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Act 17.
The particulars of charge states that the Accused on the 1st and 31st day of March 2008 at Nasinu in the Central Division unlawfully and indecently assaulted Nafiza Begum Ali.

[3] To prove this charges prosecution called following witness;

PW1- NAFIZA BEGUM ALI of Nadera 
PW2-SAMSHUD BEGUM
PW3-INODE TUI (PC 3695)

And after the court ruled there is a case to answer following 2 witnesses called for the defence; 

DW1- AIMAN KUMAR (The Accused)
DW2-TARAWATI of 8 miles

[4] PW1- - NAFIZA BEGUM ALI of Nadera; the witness stated that she in between 1st and 31st of March resided with her mother, brother and sister and the step father at River Road Narere Settlement at step fathers(the accused) residence. She is second eldest in the family. During that time her mother was admitted at the hospital. During that they stayed with her step farther. Her step father use to go and see her mother at the hospital and he use to return at late nights. On those nights he used to go to their room and change his cloths. Whilst is changing his clothes to use to get naked and play with is private part, he use to massage and play with his balls. Then he will go to witness and touché her breast over her cloths, and then he touched her private part. He did this on few occasions. He covered her mouth and then put fingers inside her private part. He threatens the witness not to tell anyone about it. If he sees anyone tells and if he sees them on the road he will kill her by bumping her with his car. Further the accused has threatened witness by telling her that he will do witchcraft on her mother and her that they will become crippled and lay on the bed for the rest of the life. She got scared and she did not tell anyone at that time. After some time the witness told her mother that Aiman was touching her body and private part. Her mother then caught him one day when he came to her bed. Later they fought at the house and then they went back to her biological father. She felt very ashamed and that is the reason she asked her mother not to report it. She identified the accused that touched her breast and private part. At the cross examination the witness maintained her stand. 

[5] PW2- SAMSHUD BEGUM - said she is the mother of the victim and had de-facto relationship with the accused for 8 years. The witness has one daughter from the accused. She returned home after discharging from the hospital between 1st to 31st of March and her daughter (PW-1) complaint several time that someone touched her breast and vagina when she was sleeping. She was told that her daughter has grabbed the hand of the person who touched her and she felt that it was her uncle (the accused). She said that since she trusted the accused she did not believe her daughter. The witness inquired this from the accused and he said it must be a "DEVIL". On 18/06/2008 the witness pretended that she was sleeping at night at her room and she saw the accused masturbating beside her daughter's bed. The light was on in the sitting room and from there the lights were entering PW-1 s bedroom. He did not touched PW-1 on that day. Then she chased the accused out. 

[6] PW3- INODE TUI (PC 3695) – this is the police witness and the witness identified the accused. The charging statement marked trough this witness as (EX-3).

[7] After the prosecution close their case The Accused counsel made oral submission on "No Case to Answer" and the prosecution replied to same. Since there were elements of the alleged offence this court ruled there is a case to answer. The defence called 2 witnesses including the accused.

[8] DW1- AIMAN KUMAR (The Accused) denied the entire allegation and said that this is a setup of his ex-de-facto wives and her daughter as they have gone bake to her legal husband the biological father of the PW1. He raised question at court that why the mother of the PW1 waited almost 3 years to report the matter if the PW2 caught him at the time of offending. 

[9] The prosecution cross examined the accused. The accused denied all allegations against him and his explanation on the allegations was all this is a set up and the victims were forced by the mother to say all this at court.

[10] DW2-TARAWATI.The defence witness an elderly lady the neighbour where the complainant and her mother used to go to yarn. She told this Court that the complainants said if the accused leaves them they will put accused into problem. She added that PW-2 told her that the accused used to touch her daughters beast and privet parts. 

[11]In now consider burden of proof and law on this offence. 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.

[12] 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] 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. 

 [14] Section 154(1) of the Penal Code states as follows:-

"154.-(1) any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

 [15] Elements of the charge of indecent assault are:

(1)	 Any person
(2)	 Unlawfully and indecently
(3)	 Assaults
(4)	 Any woman or girl

Analysis of the evidence

[16] In line with the above guiding principles, I now evaluate the evidence adduced before me. The court should find actually what had happened. The PW1 said time period of 1st to 31st of March 2008 she was touched by the accused at her bed. It was only touching and fingering but nothing else. If there are information on sexual activity such as fingering the prosecution has to call medical report from medical practitioner. But prosecution didn't mark and tender any. The main issue at this point is verifying what happened on the said time in 2008 (not in 2010) between parties? 

[17] As per the complainants this incident has happened in 2008 but they complaint this to police on 2011 after 3 years. And the victim is the step daughter of the accused who had de-facto relationship with PW2 (The mother of the victim) for 8 years. They have separated in July 2010 and it is 2 years from the incident. They have waited another 1 year to report this matter. PW2 stated that her daughter PW1 complaint several time about the assault of accused after March 2008 when she returned from the hospital but she had trust over the accused as a nice man. Therefore she did not report this to police. But as per PW2 s police statement dated 3/08/2011 last paragraph it was mentioned as 2010. Which states as follows; "in 18 June last year(2010) it was in the night I saw AIMAN in NIFAZA s room massaging his penis……" as per charge the incident in issue has happened on year 2008 and not in year 2010. But PW-2 corrected this at the hearing and stated the date of the incident was 2008. 

[18] State v Namatea[2014]FJHC 527;HAC24.2013(16 July 2014) Daniel Goundar J. stated "As a matter of law, I must direct you that a witness says on oath are evidence. What a witness says in her previous statement out of court is not evidence….." therefore even though the contradiction noticed this court accept the date of incident as June 20008 since police statement is not consider as evidence but at the time of giving evidence under oath before the court is considered as evidence. PW-1 said after that incident her mother (PW2) fought with the accused. And later they went back to her father. 

[19] PW-2 stated in evidence that she inquires about her daughter's complaints from the accused and he replied it must be a "DEVIL" and she trusted him. Further the PW2 (The victim) stated that she asked her mother not to report. This explanation justifies the delay reporting until the PW2 caught the accused on the spot on 18/6/2008.this bench understand the fact that since the accused was sole bread winner of the family at that time PW2 might have reason not to report against the accused. But if the accused got caught on the spot and due to some acceptable reasons even though PW2 refrained from reporting the matter would a reasonable mother take 1 years' time to report even after she separated from the accused is would sufficient to creates reasonable doubt in the mind of this bench?. 

 [20] When considering PW1 s police statement line 28-33 "I felt very ashamed and didn't want anyone to know about what aiman did to me. So …..But now my step farther Aiman is spreading false rumours about me and I want him to be charged and taken to court for touching me and my body" evident that PW1 has been stopped herself from reporting the matter due to reason of personal dignity which is at the risk in the society more influenced by the religion and culture. Since there is no prescribed time limit mention with regard to offences of this manner the delay reporting has no relevancy at all for the criminal liability of the accused at all. As a matter of fact it must be understand that the victim has the liberty or privileged to take decision of reporting according to circumstances. But what law requires is it must be within reasonable limits and grounds. 

 [21] Thus, this evidence itself sees that all the elements are patent in this charge. This was corroborated by PW2. However current law development indicates corroboration is no longer required for sexual offences. (Eliki Mototabua v State HAC0020 of 2002 and State v AV HAC 192 of 2008). Although there were minor discrepancies, the court notes those did not vitiate the prosecution's case. Further it stated "to be admissible, complaint must be made on the first opportunity which reasonably offers itself after the offence. The complainant need not to be on the very earliest opportunity, but must be early" ARCHBOLD 2005, 8-103. In Longman v The Queen[1989]HCA 60;(1989) 168 CLR79 it was stated "there is often very great temptation to a woman to screen herself by making a false or exaggerated charge, and supporting it with minute details of a kind, which the female mind seems particularly adopt to invent……" 

[22] 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".

[23] The victim's evidence well ahead suits for this notion. It is seen that the accused took advantage of the situation and he abuse the victim. The victim was not his biological daughters and the accused knew that she will not complain to her mother. Thus, the accused did this to the victim. I hold the prosecution proved its case beyond reasonable doubt. 

 [24] The accused is convicted as charged.

 [25] 28 days for appeal.

On 24th Feb 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate