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State v Kamal [2014] FJHC 7; Criminal Case 220.2011 (24 January 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 220 OF 2011

STATE

-v-

PRAVEEN KAMAL

Counsels : Mr. Timoci Qalinauci for the State
Mr. Roneel Kumar for the accused

Date of Trial : 21 January 2014 - 23 January 2014
Date of Summing Up: 24 January 2014
Date of Judgment : 24 January 2014
(Name of the victim is suppressed. She will be referred to as AK)

JUDGMENT

1. The Accused is charged under following counts:
   

Count 1

Statement of Offence

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

Particulars of Offence

PRAVEEN KAMAL, on the 5th day of May 2010 at Tavua in the Western Division, with intent that AK, an unmarried girl of 16 years old, should be unlawfully and carnally known by him, took the said AK out of the possession and against the will of her father, Ajay Kumar.

Count 2

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL, on the 5th day of May 2010 at Tavua in the Western Division, had carnal knowledge of AK without her consent.

Count 3

Statement of Offence

ABDUCTION WITH INTENT TO CONFINE PERSON: Contrary to Section 281 of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL and another on the 5th day of May 2010 at Tavua in the Western Division, abducted AK, with intent to cause the said AK to be secretly and wrongfully confined.

Count 4

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 286 of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL between the 5th day of May 2010 and the 6th day of May 2010, at Tavua in the Western Division, wrongfully confined AK.

2. The three assessors unanimously found accused Not Guilty of the above counts one and two and majority of the assessors found accused Not Guilty of the counts three and four.
   
3. Obviously, the majority of the assessors have not accepted the prosecution's version of events. It appeared that they have found the prosecution had not proven its case beyond a reasonable doubt.
   
4. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.
   
5. In my view, the assessor's verdict was not perverse. It was open for them to reach such conclusion on the evidence.
   
6. It is Judge's duty to listen to the view of the community when it comes to a conflict of version of events.
   
7. In this case, the assessor's verdict is not binding on me. However, on careful assessment of the case, I am prepared to accept their unanimous Not Guilty verdict on the counts of Abduction of person under 18 years of age with intent to have carnal knowledge and Rape and majority Not Guilty verdict on counts of Abduction with intent to confine person and Wrongful confinement and give the accused benefit of the doubt.
   
8. I accept the assessor's verdict and I find that the prosecution has not proven its case against the accused beyond reasonable doubt.
   
9. I find the accused Not Guilty as charged on the four counts and acquit him accordingly of those counts.
   
10. This is the Judgment of the Court.
    

Sudharshana De Silva
JUDGE

At Lautoka
24th January 2014

Solicitors : Office of the Director of Public Prosecution
Legal Aid Commission for the Accused