State v Kumar [2019] FJMC 43; Criminal File 554 of 2017 (19 March 2019)

IN THE RESIDENT MAGISTRATES COURT
AT SIGATOKA - CRIMINAL JURISDICTION

Criminal File No. 554 of 2017

BETWEEN : State

Prosecution

AND : Edwin Ashwin Kumar
Accused

Appearances

For the State : Sgt. 3348 E/p>

F>For the Accused : Mr. B. Mackanajee (LAC)

Date of Trial : 4^th September and 5^th March 2019

Date of Judgment : 19^th March 201h 2019 at Sigatoka

Note : Juvenile’s name is anonymised.

Judgment

Background

1. The Accused is charged with the following offences:

First Count

Statement of Offence [a]

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 13^th day of September 2017 at Sigatoka in the Western Division, unlawfully took I.M an unmarried girl aged 15 years and 6 months and 28 days out of the possession and against the will of her mother namely ASENACA VIVUGA who had the lawful care of the said I.M with intent to have carnal knowledge.

Second Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 13^th day of September 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 6 months and 28 days old a young person being above the age of 13 years but below the age of 16 years.

Third Count

Statement of Offence [a]

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 19^th day of October 2017 at Sigatoka in the Western Division, unlawfully took I.M an unmarried girl aged 15 years and 8 months and 2 days out of the possession and against the will of her mother namely ASENACA VIVUGA who had the lawful care of the said I.M with intent to have carnal knowledge.

Fourth Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 19^th day of October 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 8 months and 2 days old a young person being above the age of 13 years but below the age of 16 years.

Fifth Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 21^st day of October 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 8 months and 4 days old a young person being above the age of 13 years but below the age of 16 years.

2. The accused had pled not guilty to all the charges.
   

Trial

3. Prosecution called two witnesses, that is, the Juvenile I.M and her biological mother one Asenaca Vivuga.
   
4. Asenaca Vivuga stated that her daughter had been missing for four (4) days on a particular weekend wherein she reported the matter to Police.
   
5. Ms. Vivuga was not able to inform the court of the exact date.
   
6. Although her daughter and her were residents at Tagaqe Village, Nadroga her daughter was staying with her uncle and aunty. She tendered^[1] the birth certificate of I.M.
   
7. I.M informed the court that her date of birth was 17^th February 2002.
   
8. She also informed the court that the Accused (whom she identified in court) and her had sexual intercourse on 19^th October 2017 at the Accused’s residence.
   
9. This is following the Accused’s invitation for I.M to be present for Diwali celebrations at his home. She reiterated that no permission was sought for her to be present at the accused’s residence on the said day.
   
10. Prosecution then closed its case.
    
11. The court upon a finding that there was a case to answer put Section 179 of the Criminal Procedure Act 2009 to the Accused.
    
12. He chose to give evidence and denied all the allegations leveled against him, stating that he did not know the complainant I.M.
    
13. It was his evidence that his tenant one Ezekiel had known I.M.
    
14. At no point in time did he converse with I.M apart from 19^th October 2017 when he told I.M that Ezekiel was asleep after hearing I.M calling out Ezekiel’s name.
    
15. The conversation of 19^th October 2017 occurred in the presence of nine (9) others.
    
16. That brought to an end the case for defence.
    

Analysis

17. In terms of the offence of ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE, Section 211(1) of the Crimes Act 2009 states as follows:

“211.—(1) A person commits a summary offence if he or she, with intent that any unmarried person under the age of 18 years shall be unlawfully and carnally known by any person (whether such carnal knowledge is intended to be with any particular person or generally), takes or causes to be taken the person out of the possession and against the will of his or her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.”

18. Therefore the elements of the above-mentioned offence which need to be proved are as follows:
    1. A person;
    2. Intent to carnally know;
    3. A person under 18 years;
    4. Takes or causes to be taken a person (under 18 years of age) out of the possession and against the will of the parents.
       
19. The offence of DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE Section 215(1) of the Crimes Act 2009 states as follows:

“215.—(1) A person commits a summary offence if he or she unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any person being of or above the age of 13 years and under the age of 16 years.”

20. Therefore the elements of the offence for Defilement are:
    1. The accused;

ii. Had unlawful carnal knowledge;

iii. Of any person being of or above the age of 13 years and under the age of 16 years.

21. Garnering from the evidence led at trial, this court finds that there is no evidence established against the accused on Count 1, count 2 and count 5.
    
22. As such he is acquitted on those counts.
    
23. In terms of count 3 and count 4, this court is satisfied beyond reasonable doubt that evidence exists on each and every element of the offence as taken from the evidence of the juvenile and her mother.
    
24. The court found the witnesses for the state as honest witnesses judging by their demeanour.
    
25. The accused however taking a total denial stance was free to do so, however in terms of credibility the court has found that he was not a credible witness.
    
26. He could have called witnesses to support his version of events which he mentioned were present at his residence on 19^th October 2017 but none were called to do so.
    
27. As such upon accepting Prosecutions version and noting the accused’s flimsy defence, the court convicts him as charged for count 3 and 4.
    

Conclusion

28. As such the court’s judgment is summarized as follows:
    
    1. Count 1 (ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE) – Acquitted
    2. Count 2 (DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE) - Acquitted
    100. Count 3 (ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE) – Convicted as charged
    4. Count 4 (DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE)- Convicted as charged
    5. Count 5 (DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE) – Acquitted.
       
29. The court shall now accept mitigation from the accused or his counsel for the convictions under Count 3 and count 4.
    

J.N.L SAVOU
Resident Magistrate

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^[1] Prosecution Exhibit No.1