State v Chand [2025] FJMC 61; Criminal Case 408 of 2023 (20 August 2025)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 408 of 2023

The State –v- Arvin Chand

For the State: Sgt. Cerei
For the Accused: Ms. Kumar

JUDGMENT

1. The Accused is charged with the following offences:
   

FIRST COUNT
Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Act 2009

Particulars of Offence

ARVIN CHAND sometimes in the month of July 2023 at Sigatoka in the Western Division, attempted to rape RENESHA BHAVANI KUMAR.

SECOND COUNT
Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Act 2009

Particulars of Offence

ARVIN CHAND on the 20^th July 2023 at Sigatoka in the Western Division, attempted to rape VAANYA KUMAR.

2. The Accused pleaded not guilty to the charge.
3. Before the Hearing commenced, the parties agreed to certain facts, which are as follows:
   1. The victims in this case are:
      1. Renesha Bhavani Kumar born on 16^th September, 2015;
      2. Vaanya Kumar born on 25^th December 2019
   2. The Accused and the victims were neighbors at Lokia Settlement, Sigatoka including the month of July 2023.
   100. Both victims always go and play at the Arvin Chand’s house.
   4. The alleged incidents [as per the charge] took place at Arvin Chand’s house.
4. Upon considering the position of the parties, the Court ordered that during Hearing, the Court be closed, names be suppressed, screening be done for the victims who are vulnerable witnesses and their father Binesh Kumar sit beside their respective sides during the giving of evidence.
5. The Hearing commenced on 23^rd January, 2025 and continued on 14^th May, 2025.
   

The Prosecution’s Case

6. Prosecution Witness 1 (PW1) is Renesha Bhavani Kumar, 10 years of Lokia Settlement, Sigatoka. She recalls that in July 2023, she lived in Lokia with her grandfather, two uncles, her father and sister. She would go to her Uncle place close by to play. She remembers Uncle’s place was occupied by Aunty and two other aunts. She knows Uncle’s name as Arvin and he is quite old but shorter than her father whom the Court estimated at 5 feet 6 inches. Uncle has white receding hair and she saw his outside Court today wearing black pants and brown short. She recalls one day during the said month, she went to Uncle’s house to play with Uncle’s granddaughter Prisha Pritika Kumar. Then while Prisha was watching movie in her bedroom and the aunties in Uncles house were elsewhere in the house, she was in Uncle’s kitchen with Uncle. Uncle then told her not to scream or tell anyone what he was going to do or he will kill her and throw her into the drain beside his house. He then made her take off his undergarments while he took off her undergarments. He then tried to bring together his private part and her private part. He held his private part with to her private part where his private part went a little into her private part. This happened for about 5 minutes. She did not shout for help as she was scared of him. She felt it was not good, it was bad. After he stopped putting his private part to her private part, she then wore her undergarments and walked back to her home. After about a week, she then told her grandparents and two uncles about what Uncle did to her. The matter was then reported to the police.
   

In cross-examination, she states that this incident happened in the morning and that it happened on the floor of Uncle’s kitchen.

7. Prosecution Witness 2 (PW2) is Vaanya Kumar, 5 years of Lokia Settlement, Sigatoka. She says that she would usually go and play with another girl at Arvin’s house. She saw Arving outside Court prior to the Hearing as he was wearing a red shirt. So in Arvin’s house, there lived Arvin, Nisha Jiji, Poonam Aunty and grandmother. She remembers one day Arvin told her that he will give her a loli. She went with him where he took of her shorts and then took off his shorts. He then spat on is private part and “touched” it to her private part. This happened for some time. She felt pain but did not tell him. After he finished doing this, he gave her a loli and she went home. She then told her grandmother about what Arvin did to her and the matter was reported to the police.
   

In cross-examination, she states that this incident happened in the kitchen when she was alone with Arvin while grandmother and two others were outside and Poonam Aunty was in the room. During the incident, she recalls the kitchen backdoor was open but she did not run out as he was holding onto her during the incident. She did not shout and she was afraid that if she did, he might kill her. After the incident, she never returned to Arvin’s house.

8. Prosecution Witness 3 (PW3) is Soran Lata Narayan, Domestic Duties of Lokia Settlement, Sigatoka. She is grandmother to PW1 and PW2 and they live with her and her husband with their father who is her son and his two brothers. The Accused is her uncle in law and neighbor. Her granddaughters PW1 and PW2 would play with a little girl at the Accused’s house. She recalls the day of the incident, 20^th July 2023, regarding PW2 as she was going to the farm with her. PW2 told her that she wanted to go to the Accused’s place to play, which is about 20 meters from the house. She said that PW2 knows the Accused as Uncle. She agreed and so PW2 walked to the Accused’s place. She could see the Accused’s wife sitting at the passage of the house before she left towards the farm. When she was at the farm for about 15 to 20 minutes, PW2 came to her saying that the Accused was playing with her so she asked her what game they were playing. She (PW2) then said that the Accused took her to his kitchen and took off his pants. She said that the Accused then took her shorts off, made her lie down, spat on her and rubbed his private part onto her private part. After hearing this, she then went to the Accused’s house to confront his about it. She then asked PW1 if this happened to her too but PW1 said no. She then told PW1 what happened to PW2 according to PW2. PW1 then told her what the Accused did to her and that she was scared to tell PW3 as the Accused had said to her that he would kill her and bury her in a pit near the house.
   
9. Prosecution tendered in the following exhibits:
   1. Prosecution Exhibit 1 (PE1) – Birth Certificate of PW1.
   2. Prosecution Exhibit 2 (PE2) – Birth Certificate of PW2.
   100. Prosecution Exhibit 3 (PE3) – Medical Report of PW1.
        
10. That was Prosecution’s Case.
    
11. At the close of Prosecution’s case, the Court found that the Accused had a case to answer. The Accused chose to give sworn evidence.
    

The Defense Case

12. The Accused is unemployed of Lokia, Sigatoka. In July 2023, he was employed as a carpenter for a European man named Dick in Lokia. At the time, he was residing with his son Rohit, Rohit’s wife Poonam and his sickly wife in Lokia. He knows PW1 and PW2 as sisters and they reside close to his house. He denies the allegation raised against him in this matter. On 20^th July 2023, he was actually at work with his son Rohit, Dick and other colleagues and so he could not have committed this offence against PW2.
    

In cross-examination, he states that PW1 and PW2 are like his granddaughters as they reside beside him and usually come to his house. He did not file a Notice of Alibi and that he only informed his Counsel this morning that he was at work on 20^th July 2023.

13. Defense closed its case.
    

Analysis

14. The Prosecution bears the burden of proving the charge beyond reasonable doubt. There needs to be relevant and admissible evidence supporting each element of the offences contained in the charge.
    
15. In the case of Bulimaiwai v State [2005] FJHC 261, the Court stated that the elements of the offence of attempted rape are:
    

1. That the Accused intended to have carnal knowledge without consent;

2. That the Accused did some overt act to put his intention into execution.

16. As alluded to earlier above, the parties agreed to certain facts and so the following is assessed against that as the accepted background.
    
17. It is vital to note that in sexual offences such as this, no corroboration of the complainant’s evidence is necessary. This is recognized pursuant to section 129 of the Criminal Procedure Act and reflected in Faizal Mohammed v State Criminal Appeal No. AAU 79 of 2022.
    
18. It is also vital to note that consent is not an issue here as both PW1 and PW2 are under 13 years of age and therefore, incapable of giving consent. This is provided for in section 207 of the Crimes Act.
    
19. As required under section 10 of the Juveniles Act and common law^[1], the Court held a competency test for both child witnesses, that is, PW1 and PW2. The Court found both said witnesses respectively competent to give evidence.
    
20. Prosecution relied on the evidence of PW3 as recent complaint. In State v. Likunitoga [2018] FJCA 18; AAU0019.2014 (8 March 2018), the Court of Appeal stated:

“[56] The legal position on recent complaint evidence was stated in Raj v. State CAV0003 of 2014: 20 August 2014] FJSC 12

In any case evidence of recent complaint was never capable of corroborating the complainant’s account: R v. Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The State Crim. App.12 of 1989; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S. 24^th November 2006.

Procedurally for the evidence of recent complaint to be admissible, both the complainant and the witness complained to, must testify as to the terms of the complaint. Kory White v. The Queen [1998] UKPC 38; [1998] UKPC 38; [1999] 1 AC 210 at p215H.K.”

The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.”

21. Therefore, if this Court is to accept or admit the said evidence as recent complaint, it must look at whether PW1 and PW2 testified to the terms of the complaint. It is not clear whether the terms need to be general or specific. In this case, PW1 and PW2 respectively say that each told PW3 what the Accused did to her. But what exactly was relayed? Unfortunately, this was not elicited. PW3 said that PW1 told her what the Accused did to her. Again, what exact words did PW3 hear from PW1? Unfortunately, this was again not elicited. This would have provided the “terms” as required in Likunitoga. But for PW2, PW3 heard PW2 say that the Accused took her to his kitchen and took off his pants. She said that the Accused then took her shorts off, made her lie down, spat on her and rubbed his private part onto her private part. This does qualify as terms, that is, what was been said between them. I therefore accept the recent complaint by PW2 to PW3 as evidence. Further, this proves consistency in PW2’s evidence.
    
22. We will now look at the evidence adduced in relation to each element of the offence for the respective offences.
    

Count 1

23. For element 1, that the Accused intended to have carnal knowledge without consent, Prosecution relied solely on the direct evidence of PW1.
    

PW1 states that the while Prisha was watching movie in her bedroom and the aunties in Uncles house were elsewhere in the house, she found herself alone with the Accused in the kitchen. This evidence strongly implies that the Accused as an adult and owner of the house ensured that everyone else of and in the house were engaged in other parts of the house while he was alone with PW1, a 8 years old in the kitchen.

PW1 states that the Accused then told her not to scream or tell anyone what he was going to do or he will kill her and throw her into the drain beside his house. This evidence shows that the Accused isolated the PW1 from the others and more so, proves that he had intended to do something to PW1 that will be done so without her will.

24. For element 2, that is, that the Accused did some overt act to put his intention into execution, again Prosecution relied solely on the direct evidence of PW1.
    

PW1 states that while they were in the kitchen, the Accused made her take off his undergarments while he took off her undergarments. He then tried to bring together his private part and her private part. He held his private part with to her private part where his private part went a little into her private part. This happened for about 5 minutes. This significantly shows an obvious act by the Accused to execute his intention of having sexual intercourse with PW1.

Count 2

25. For element 1, Prosecution relied on the direct evidence of PW2 and the recent complaint of PW3.
    

PW2 states that she remembers the Accused telling her on the day in question (as this date was confirmed by PW3 after PW2 complained to her after the fact that day) that he will give her a loli. She then went with him where he took of her shorts and then took off his shorts. This proves that he intended to have sexual intercourse with PW2

26. For element 2 of the offence, PW2 states that the Accused spat on his private part and “touched” it to her private part. This happened for some time. She felt pain but did not tell him. After he finished doing this, he gave her a loli and she went home. Such evidence, in the Court’s view, shows an obvious act by the Accused of meaning to have carnal knowledge with PW2.
    
27. PW2 states that she then told her grandmother about what Arvin did to her and the matter was reported to the police. PW3 confirms this in her evidence. As stated earlier, this goes to consistency of PW2’s evidence.
    
28. Defense says that the Accused was not there at the time of these two offences. He states that he was elsewhere, in particular at work. The Accused did not file a Notice of Alibi as required by law to show reliance on this defense. While the Court did give leave to the Accused to lead alibi evidence, the manner of raising alibi defense does bring into doubt the Accused’s credibility. This doubt, was further expanded when the Accused confirmed to the Court that he had just told his Counsel of this defense on the morning of the Hearing. Had the Accused being genuine in his reliance on this defense, such a stance would have been communicated in instructions and the same conveyed to Court at the outset or in the duration of these proceedings.
    

On another significant note, the Accused also did not put to PW1 and PW2 that he could not have done this to PW1 or PW2 as he was elsewhere. It is evidential requirement under the rule of Browne v Dunn that the position of a party must be put to the relevant witnesses so as to elicit the relevant witness’s response to that position. This rule of evidence achieves fairness. Unfortunately, this was not done by Defense.

Weighing all these factors together, compels this Court to question the credibility of the Accused. I therefore place minimal, if not nil weight on the Accused’s evidence of alibi.

All in all, Prosecution did rebut the alibi evidence through PW1 and PW2 who individually identified the Accused being there with them at the two respective times to carry out these offences.

Court’s Findings

29. After assessing all the evidence and the demeanor of the witnesses, I choose to believe the evidence of PW1 and PW2 as there is no reason sufficient enough to doubt the same. PW1 and PW2 are credible and reliable witnesses.
    
30. I therefore find Prosecution has discharged its burden of proving the charge of beyond reasonable doubt.
    
31. In light of the above, I therefore find you, Arvin Chand, guilty of the offences of Attempt to Commit Rape.
    
32. We will now move to antecedent reports, mitigation and sentencing submissions.
    

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J. Daurewa
Resident Magistrate

20^th August, 2025

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^[1] R v Brasier (1779) 168 Eng Rep. 202 (K.B); Prakash v State [2017] FJHC 263; HAA68.2016(7 April 2017).