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State v Kumar [2015] FJHC 168; HAC030.2012 (9 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 030 of 2012

STATE
v.

1. NITESHNI KUMAR
2. RAVINESH SINGH

Counsel: Mr. Nath S and Ms. Chowdhury M for State
Mr. Kumar S for Defence
Dates of Hearing: 2nd, 3rd,4th and 5th March 2015

Ruling: 9th March 2015

RULING
[Voir Dire]

[Name of the victim is suppressed. The victim will be referred to as S.S.]

1. The 1st and 2nd accused persons challenge the admissibility of their caution interview statements and charge statements that they purportedly made to the police.
   
2. The grounds for challenge are:
   
   1. Oppression; that the accused persons were kept in custody since 07/12/2011 and caution interview was taken on 09/12/2011.
   2. Accused persons were assaulted by PC Niklesh.
   3. Accused persons were threatened of being locked up and kept away from their children for longer period by PC Niklesh.
   4. 1st Accused was promised that she would be let free if she made a confession.
   5. 2nd accused was taken for medical examination of his private parts after he was injured by assaults by PC Niklesh.
      
3. The prosecution must prove beyond reasonable doubt that the confession made by the accused was voluntary, and was made without threats, inducement, promise or oppression. Also prosecution must prove that the accused was given his rights and if his rights were breached that he was not prejudiced by that breach.
   
4. Police Constable 3180 Niklesh in his evidence said that he escorted the 2nd accused Ravinesh to the Health Centre Nausori for medical examination. He also caution interviewed Ravinesh. Caution interview was witnessed by D.C. Arvin Singh. He said that there was no threat or promise or inducement given to the accused and that the accused person's rights were given. He said accused was never assaulted.
   
5. He said that the accused Ravinesh was taken for medical examination as an accused of a rape case. There had been blood stains in his under garments and trousers. Caution interview has commenced at 19.00 hours on 07/12/2011 and concluded on 09/12/2012 at 11.45 hours. Accused was given breaks in between.
   
6. Arresting Officer Sgt. Pradeep Lal in his evidence said that both the accused persons were arrested on 07/12/2011. He also said that no threat or violence was used on the accused persons. In cross examination he said that he did not see any blood on accused when he was arrested.
   
7. Charge statement of the 1st accused Niteshni Kumar was produced by Charging officer PC Parmendra Singh. He denied any kind of threat or assault on the accused Niteshni.
   
8. DC Avinesh Maharaj who was the Charging Officer for Ravinesh the 1st accused, also giving evidence said that Ravinesh was never threatened or oppressed and that no complaints were made by Ravinesh. He said that the charging took place for about 20-25 minutes. He said that Ravinesh made his statement voluntarily and no inducement or threat was made.
   
9. Senior Scientific Officer of Fiji Police Forensic Biology and DNA Lab gave evidence. He has specialized in Forensic Biology. He gave evidence on his report prepared after examining the exhibits. His evidence was that the shirt marked (RS2) contained blood, RS3 undergarment contained spermatozoa, and Pants (RS4) contained blood and spermatozoa. The plastic marked (CS2) contained human blood. He said that the exhibits were delivered by DCpl 1928 Sakenasa of Nausori Police Station as its written there.
   
10. The medical officer Susana Nakalevu in her evidence said that the 2nd Accused in this case was brought before her for medical examination on 07/12/2011 by the Police.He was to be examined as a suspect in a rape case. She had examined his private parts. She has observed no injuries or bruisers in the groin, scrotum and the penis. Private parts looked normal, she said. However she had noticed blood like stains in the side hip region on the trousers he was wearing and also on his underwear.
    
11. In cross examination she confirmed that no injuries were seen in his private parts.
    
12. Investigating Officer Ateshni Maharaj also gave evidence. She has visited the crime scene and uplifted the exhibits. She uplifted a plastic from the scene and the clothes the 2nd accused was wearing. She identified the exhibits. She also has recorded the caution interview statement of the 1st accused Niteshni. She said no promiseswere given to 1st accused and that no threat or inducement made. She also said that 1st accused was never assaulted. She admitted that the accused persons were kept in custody for more than 48 hours. She said that as an Investigating Officer she had to visit the crime scene and also she had to go to the hospital to see the victim who was bleeding. She also said that as it was the weekend,they could not produce the accused persons before Magistrate's Court. She denied that the accused was oppressed.
    
13. At the end of the evidence for the prosecution both accused persons gave evidence in court.
    
14. 1st accused said that while the caution interview statement was recorded she was slapped and her hair was pulled by the police officers for about 60-70 times. She was asked to admit that she asked 2nd accused to rape the girl. When she refused she was assaulted, she said. Further she said that she was threatened to keep in custody for long, so that she could not see her children.
    
15. She also said that when she was charged and caution interviewed, no police witness was there. She was forced to sign. She was assaulted by Niklesh and Ateshni, she said.
    
16. She said that she did not complain to the Magistrate about the assault, because police threatened her not to.
    
17. 2nd accused giving evidence said that he was assaulted by one police officer on his stomach and private parts. He said it was painful. When he was asked whether he was injured he said it was painful that's all and only pain.
    
18. He said that the doctor never removed his underpants to see his private parts but only the trousers. He signed the caution interview statement because he was assaulted, he said.
    
19. He had not told the Magistrate about the assault as he was threatened by the police. He also said that he was threatened of being locked up.
    
20. Witness Satish Prasad, brother-in-law of the accused gave evidence. He said that when he went to the police station to see the 2nd accused he was not allowed to meet him. He has seen Police officer Niklesh assaulting him on his stomach and private parts.
    
21. 2nd accused's brother also said in his evidence, that he too saw police officer assaulting 2nd accused in his private parts and stomach. Police have not allowed him to meet 2nd accused. Also he said that police officer threatened him to lock him up if he complains. 2nd accused has yelled for help when he was being assaulted.
    
22. 2nd accused's mother Pranita Wati also testified that she also saw the 2nd accused being assaulted at the police station. 2nd accused had been inside a room at the police station and the police had chased her away. She had seen it through the room window.
    
23. Police officer Ateshni Maharaj who recorded the caution interview statement testified that she or other police officers never assaulted the accused persons. No threat, promise or inducements were made. However, the 1st accused in his evidence said that she was slapped by PC Ateshni about 60-70 times. Also she said that her hair was pulled. Although the 1st accused said that PC Ateshni was about same size of her, the court observed that the police officer Ateshni was much taller and looked fitter than the 1st accused. If the 1st accused was assaulted on her face by PC Ateshni for 60-70 times at least she would have got a swelling on her face. She was not injured. 1st accused had never complained to any authority about the assault. She says that she was threatenednot to report to Magistrate. On perusing the Magistrate's Court record, I found that the case was mentioned on 3 occasions and counsel also appeared on the last 2 occasions. On none of those occasions a complaint was made to the Magistrate by any of the accused persons. I find that the evidence of PC Ateshni that the 1st accused was not assaulted was truthful.
    
24. 2nd accused Ravinesh alleged that he was assaulted by the police in his stomach and private parts. PC Niklesh the officer who recorded his caution interview statement testified that he never assaulted the 2ndaccused nor he was threatened or induced.
    
25. 1st accused also said that he was punched on his stomach and private parts about 50-60 times. 1st accused has urged on a voir dire ground that he was taken to the medical officer because of the injuries he received to his private parts. The doctor who examined him clearly stated in court that he had no injuries in his private parts. Accused had never made any complaint to the doctor. Doctor clearly stated how she examined and saw no bruises or blood. However, she has noticed blood on his underpants and trousers. The police officers and the doctor testified that the 2nd accused was taken for medical examination as he was a suspect in the rape case which alleged to have taken place on the same day. The 2nd accused was subjected to the medical examination for that purpose and not because he was injured by assault.Even the 2nd accused said that it was only the pain he had. No injuries seen by the doctor.
    
26. Therefore I find that the prosecution has disproved this ground of Voir dire beyond reasonable doubt and that the evidence given by the police officers that the accused was not assaulted is truthful.
    
27. On behalf of the 2nd accused, three of his relations, brother, brother-in-law and mother gave evidence and said that they saw the 2nd accused being assaulted at the police station. They gave standardized evidence that he was assaulted in his stomach and private parts.
    
28. It was not challenged that they were present at the police station. However none of them have made any complaint to any authority. As said before, no complaint was made to the Magistrate. No injuries found. Hence I find that the evidence led by the prosecution that 2nd accused was not assaulted was true.
    
29. The officers who charged the accused persons also testified in court and said that charge statements of 1stand 2ndaccused were made voluntarily.
    
30. Now I will discuss the issue of keeping the accused persons in custody for a long period. Both accused persons were taken into custody on 07/12/2011.
    
31. Investigating officer Ateshni explained in her evidence as to why the recording of the caution interview statements of both accused persons were concluded on 09/12/2011.
    
32. The accused persons were produced before the Magistrate only on the 12th December 2011. The reason given by the Investigation Officer Ateshni was, that it was a weekend and therefore they were produced on 12th before the Magistrate. The reasons given for giving long breaks were, that she was waiting for the medical report of the victim and that she had to go and see the victim when she was transferred to the CWM hospital. It was unchallenged evidence, that the victim was transferred to CWM hospital because of her bleeding. Therefore as Investigating Officer she had to attend to it, she said.
    
33. It is a fact that the accused persons were kept in custody for more than 48 hours, reason being it was a weekend. The fact remains that the twoaccused persons were kept in custody for more than 48 hours breaking the law by the police.
    
34. However I find that the caution interview statements and the charge statements of both accused persons were recorded within 48 hours from the time they were taken into custody. After concluding the recording of the statements on Friday the 9th, they were produced before the Magistrate on 12th as it was a weekend. As the statements were recorded within 48 hours of their arrest, and also when consider the reasons given by the Investigating Officer for the delay in producing them before the Magistrate,I find that the accused persons were not oppressed by being in custody for more than 48 hours.
    
35. I also find that the evidence of the two accused persons that they were assaulted and threatened to sign their statements, was not truthful. I also find that the evidence of the three witnesses for defence that they saw the 2nd accused being assaulted at the police station was not truthful. I also find that the prosecution has proved beyond reasonable doubt that the caution interview statements of the two accused persons and their charge statements were made voluntarily. Therefore I find that the caution interview statements and the charge statements of the accused persons are admissible in evidence.
    

Priyantha Fernando
Judge

At Suva
Office of the Director of Prosecutions for the State
Office of Sunil Kumar Esq. for both Accuseds