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State v Prasad [2012] FJHC 1012; HAC150.2010 (12 April 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 150 of 2010

BETWEEN:

STATE
Prosecution

AND:

MAHENDRA PRASAD
- The Accused

Mr Semi Babitu for the State
Mr T. Terere for the Accused

Dates of Trial : 10 – 11 April 2012

JUDGMENT

1. The accused stood charged for having committed the offence of 'Rape' punishable under Section 149 read with Section 150 of the Penal Code.
   
2. The offence was alleged to have been committed on one Shomal Kartika Kumar between 01-30 March 2009 at Yalalevu, Ba.
   
3. At the trial before me with three assessors, the prosecution presented the evidence of the alleged victim-Shomal Kartika Kumar; Lila Naicker Singh, a Social Welfare Officer, and Dr. Virisila Sema, Obstetrician and Gynecologis,t attached to Lautoka Hospital.
   
4. Evidence of the alleged victim, Shomal Kartika Kumar, revealed that she was 16 years of age having born on 04 May 1995 and was residing in Yalalevu, Ba from May 2008 to May 2009. She said that she was residing with her step-father along with her two sisters and two brothers.
   
5. The witness alleged that her step-father came to her bed where she was sleeping with her younger sisters and had sexual intercourse without her consent for thirty minutes 'at 2.00 a.m.' on an unspecified date in March 2009.
   
6. The complaint of forcible sexual intercourse was, however, made to an aunt on 30 September 2010, nearly after 18 months, and sought to justify the delay on the basis of alleged threats made at her by the step-father.
   
7. Upon the complaint being made, she was taken to the Social Welfare Officer, Lila Naicker Singh. She was subsequently medically examined where Dr Virisila Sema found the loss of her hymen with no lacerations or fresh injuries on genitalia.
   
8. Answering cross-examination, the alleged victim stated that the complaint of rape came to be made as the aunt, Ragani, was suspecting her of having an illicit affair with the aunt's husband, Ashmil, in September 2010.
   
9. Witness-Lila Naicker Singh, in her testimony, stated that she came to be in contact with the alleged victim on 30 September 2010 upon the victim being referred to her by the victim's grandmother on her obstinate behaviour. The alleged victim had, at that point of time, narrated the story of having been sexually abused by her step-father in 2009.
   
10. The delay by a period of eighteen months, as revealed by the evidence, is too long by any standard to make a complaint on a case of forcible sexual intercourse. The reasons attributed to the delay were the alleged threats made by the step-father. It, however, appears that the alleged victim ceased to reside with the step-father from May 2009. From that point onwards, there were four months within which she could have made a complaint, if such a forcible sexual intercourse had ever taken place.
    
11. Conversely, the alleged threats are unsubstantiated and they are confined to a mere statement made by the witness in witness-box more than three years after the alleged offence in March 2009.
    
12. The evidence, therefore, is unreliable and unsafe to act upon in order to put an accused person on trial on a serious charge such as rape.
    
13. In addition to the absence of credit and unreliable nature of the prosecution's case, what is more startling to observe is the absence of evidence on identification of the accused.
    
14. The prosecution did not elicit from the alleged victim, who the step-father was that she was referring to. The prosecution also did not ask any question from the victim to establish that the accused-person on the dock was the person who committed the alleged offence of forcible sexual intercourse in March 2009.
    
15. There is, therefore, no case made out by the prosecution against the accused-person for this court to call for defence and proceed with the trial as provided for under section 231 (2) of the Criminal Procedure Decree No. 43 of 2009[the Decree].
    
16. Learned counsel for the accused, accordingly, made an application to acquit the accused.
    
17. In the above circumstances, I uphold the application of the learned counsel in terms of Section 231 (1) of the Decree as the court does not propose to proceed any further with this trial in the absence of evidence at all against the accused-person.
    
18. The accused is, accordingly, acquitted forthwith.
    

Priyantha Nāwāna

Judge

High Court

Lautoka

11 April 2012