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State v RK - Judgment [2012] FJHC 1167; HAC074.2011 (6 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 74 of 2011

BETWEEN:

STATE
Prosecution

AND:

RAHUL RAVINESH KUMAR
The Accused

Dates of Trial : 04 – 05 June 2012
Date of Summing-Up : 06 June 2012
Date of Judgment : 06 June 2012

Mr F Lacanivalu for the State
Mr H. A. Shah with Mr M Degei for the Accused

JUDGMENT

1. The accused stood charged for having committed the offence of 'Rape' punishable under Section 207 (2) (a) of the Crimes Decree No. 44 of 2009. Particulars of the offence, as disclosed by the information dated 07 July 2011 by the Director of Public Prosecutions, were that the accused had carnal knowledge of a girl named RS, 7 years of age, on 20 February 2011.
   
2. Prosecution led the evidence of RS, her father Nitya Nand, a neighbour Shavnil Vikash and Dr. Sherene Sanjeshni Prasad. The statement of the Investigating Officer, WDC 3784 Kelera of Sigatoka Police Station, was produced with consent by the parties. Prosecution closed its case with documents marked PE-1, being the Birth Certificate; and PE-2, being the statement of WDC Kelera.
   
3. The accused gave evidence under oath and called witness Parvati Nair in support of his case.
   
4. Evidence revealed that witness Nitya Nand, his de-facto wife along with the victim-RS and her sister Palvi Darshik moved their home from Lautoka to Sigatoka on 19 February 2011. The accused, who was a neighbour and later became a friend of Nitya Nand, helped the family to shift their belongings on 19 February 2011. Evidence of the victim was that, on 20 February 2011, when her parents were away purchasing some grocery items, the victim and her sister were left behind at their new home in Sigatoka and asked the accused to look after. As RS came out of a shower with a towel wrapped around her, the accused removed the towel and pulled her inside a room of the house. Thereafter, the accused, having licked her body allover, penetrated her vagina with his penis, which, according to the victim, was 'very very painful'.
   
5. The incident, however, did not come to light until 14 March 2011 when the victim revealed it to witness Shavnil Vikash who was living in their neighbourhood. Witness Shavnil Vikash conveyed the information to Nitya Nand, the father of the victim. The matter was thereafter reported and police investigation ensued with a medical examination on RS by Dr Ms Sherene Prasad.
   
6. Dr Ms Sherene Prasad in her testimony revealed that there was a healed abrasion on her right thigh and that she observed loss of hymen of the victim. There was no, however, evidence of recent penetration.
   
7. The accused in his sworn evidence denied having had access to the victim to have carnal knowledge even though he had stayed with Nitya Nand for two days from 19 February 2011 until he left the place on the following Monday. The accused specifically stated that the two children were kept under the care of Parvati, who was the landlady, when the parents went away on shopping. He further said that the parents went on shopping on Saturday 19 February 2011 and not Sunday 20 February 2011 as testified to by witness Nitya Nand. When confronted with the statement made by the accused in relation to the fact that the two children were, in fact, with him on 20 February 2011, the accused denied and said that he did not know what the police had recorded.
   
8. There was manifestly a delay in revealing the incident by the victim. Consequently, police investigation into the incident and the medical examination of the victim, too, became late.
   
9. The assessors were directed on the issue of delay and on matters pertaining to evaluation of the evidence in light of the inherent circumstances that had arisen due to the tender age of the victim. The assessors have returned unanimous opinions of guilty. They appear to have, in my view, rightly directed themselves in regard to the evaluation of the evidence of the prosecution and that of the defence. It appears that the assessors have rejected the version of the accused and accepted the prosecution evidence in relation to each element of the offence as charged.
   
10. Having regard to the evidence and the directions in the summing up on law, I am of the view that the assessors were entitled to return the opinions as they did. I concur with their unanimous opinions that the accused is guilty of the offence as charged.
    
11. I, accordingly, convict the accused of the offence of Rape under Section 207 (2) (a) of the Crimes Decree No. 44 of 2009.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
06 June 2012