IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 70 OF 2012

STATE

V

MOHAMMED SAHMEEL KHAN

Counsels: Mr. A.Singh for the State
 Mr. L.Jiuta for the Accused 

Dates of Trial: 13th July 2015 -17th July 2015
Date of Summing up: 20th July 2015

(Name of the Victim is suppressed. She is referred to as SH)

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. In other words you are the Judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

5. The counsel for Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

6. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I come to deliver my judgment.

7. On the matter of proof, I must direct you as a matter of law, that the Accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the Prosecution and never shifts.

8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. Your opinions must be solely and exclusively upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this Courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.

10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. As Assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12. In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is, as you could hear from evidence, this case involved an alleged incident of Rape. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to.I will deal with the law as it is applicable to the offence with which the Accused-person is charged, in a short while.

14. In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.

15. The charges against Accused are as follows:

Statement of Offence

RAPE: Contrary to Sections 207 (1) (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Mohammed Sahmeel Khan between the 1st day of July 2011 and the 5th day of September, 2011 at Nadi in the Western Division penetrated the vagina of SH, a 12 year old child, with his penis. 

16. I will now deal with the elements of the offence. A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

17. Carnal knowledge is to have sexual intercourse with penetration by the penis of a man to the vagina of a woman to any extent. So, that is Rape under Section 207 (2) (a) of the Crimes Decree.

18. The elements of the offence of Rape in this case are that: 

a. the Accused

b. penetrated the vagina of SH to some extent with his penis.

19. Other parts of the offence are irrelevant to the facts of this case.

20. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent. 

21. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the victim was a witness who offered direct evidence as to what she saw, heard or felt.

22. Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example, if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victims.

23. The doctor, in this case, came before Court as an expert witness. However, he had not examined the victim. He only came to tender the Medical report prepared by doctor Lata who examined the victim. Expert evidence of a doctor's report and her opinion is not accepted blindly. You will have to decide the issue of rape by yourself and you can make use of doctor's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence in the case.

24. I will now deal with the summary of evidence in this case.

25. Prosecution called the victim, SH, as the first witness. SH said that she was born on 19th September 1998 and was a Form 2 student of Nadi Muslim School in 2011 when the incidents happened.

26. SH's mother Fatima Nisha and father Anwer Hussain were in a de facto relationship and got separated in 2010.They were not living together thereafter. Her mother lived in Sabeto while her father lived in Namaka. 

27. SH came to know the Accused, Mohammed Sahmeel Khan (Khan) when she attended her sister's wedding in Ba in December 2010. She developed a relationship with Khan. They exchanged telephone numbers and started communicating with each other. She met him again at Prince Charles' Park in 2011. 

28. In May 2011, SH came to stay with her mother in Sabeto where she was running an internet shop.

29. When SH came to Sabeto to live with her mother, relationship with Khan further improved. Khan used to come and stay with them at mother's internet shop in Sabeto during weekends and holidays.

30. Bedroom SH used to sleep was separated from the internet shop by a partition. The bedroom had two beds. SHused to sleep on one bed and her mother used to sleep on the other. When Khan visited them in Sabeto, SH slept with Khan on the same bed while her mother slept on the other.

31. From May 2011, Khan tried to have sexual intercourse with her several times. One day in August 2011, when her mother was not around during day time, Khan's attempt was successful when he injected his private part into her private part. It happened with her consent.
32. In early September 2011, she sometimes had fights with Khan and did not give consent to have sexual intercourse. Still he kept on coming and did many acts that she did not like. He touched and kissed her forcefully and had sexual intercourse without her consent. 

33. SH did not inform these incidents to her mother or anybody else. Her mother was out every time clubbing and partying with his boyfriends.SH did not talk to her much. 

34. One day, Khan came to the shop with his friends and organized a dinner party at her landlord's house. That night, SH contacted a boy by the name of Pups. Pups informed SH that her mother was planning to do something to her father to regain her custody.SH gave her father's phone number to Pups and asked him to inform her father about that. 

35. Her father, Anwer upon hearing this came to Sabeto the same night and took her away. SH went with her father to his house in Namaka, but did not tell her father what Khan had done to her. 

36. The same night, Police came to her father's place and questioned her whether Pups had raped her. At that time she told her father that it was Khan who raped her, not Pups. 

37. Police questioned SH about Pups.SH said that she had developed a relationship with Pups. Her mother had complained to the police with the intention of implicating Praneel(Pups) in the Rape allegation, so that Khan, her cousin, could be protected.SH further said that she had never informed mother that Khan has had sexual intercourse with her. 

38. SH was medically examined at the Nadi Hospital. It was agreed that SH was medically examined on 3rd October 2011 by Dr.Sherleen Lata at the Nadi Hospital.

39. When her Religion teacher, Ifraz-Ud-Din, contacted her over Facebook and inquired about her failure to attend school, she informed him that she was having problems with Khan. 

40. In cross examination, SH admitted that she made three statements to Police regarding the incident. First one was on the 4th of October 2011,second one was on the 09th of October 2011 and the third one was on the 10th of October 2011. She also admitted that she moved to her mother's place at Sabeto after an argument with her father over the relationship she was having with Khan. 

41. SH said, in cross examination, that she had a mobile phone and had access to internet. She admitted that she did not report any of the incidents to her classmates or to the female class teacher. She also admitted that she waited for more than three month to inform the incident to anybody.

42. She admitted that she did not scream or cry for help when she was being raped. She did not share the rape incident with anybody though she had more than 100 Facebook fans. 

43. SH, in cross examination, admitted that she was coached by her father before coming to give evidence. She later indicated that she did not understand the question and denied having been coached. She also admitted talking to the Prosecution Counsel twice before giving evidence. 

44. Prosecution called Doctor Josaia Tiko of Nadi Hospital. He identified the medical report prepared by Dr. Sherleen Lata who had examined SH at Nadi Hospital on 04th October 2011. He said that Doctor Lata who examined SH had gone abroad. When she left the country she handed all the medical reports over to him as he was the Principle Medical Officer at the Nadi Hospital. He identified Dr.Lata's signature and hand writing. The medical report was presented to him for identification and was tendered marked as PE.1.

45. Giving evidence on PE.1, Dr.Tiko said that according to the history related by the patient, she had been raped by an Indian boy in August. Patient's hymen was not intact. Patient was calm and had no injuries present at the time of examination. Referring to PE.1, the doctor further said that history related by the patient is consistent with the medical finding. 

46. Dr.Tiko gave his medical opinion as to why hymen being not present and said that it could only be possible with a penetration. Absence of any injuries could be attributable to time gap between the alleged rape and the examination.

47. Anwer Hussain (Anwer), father of SH gave evidence next. He said that he won the legal battle to get full custody of her daughter when he got separated from her mother FathimaNisha (Nisha), his de-facto wife. 

48. He said that SH was sent to her mother's place in Sabetoin May 2011 because he wanted her to learn cooking, cleaning and 'woman things'.

49. When SH was with her mother at Sabeto, Anwer received a call from a friend of SH and was informed that SH was having hard time and was being ill-treated by her mother. He made a complaint at Namaka Police Station in this respect and went to Sabeto with a police officer.He brought her daughter back to his house in Namaka on the same day around 11 p.m.

50. Once they had arrived in Namaka, a Police party from Sabetohad come to his house.They had come to inquire about a complaint lodged by de-facto wife Fatima and her landlord Ranjeeth that SH had been raped by a boy.

51. Anwer went inside home and informed his daughter what the Police had told him. SH told Anwerin reply that she was raped by Fatima's family member, Mohammed Sahmeel Khan and not by the boy whose name was mentioned by the Police.

52. Anwer told us that he was not aware of a relationship his daughter might have had with Khan prior to her moving to her mother's place in Sabeto. However, he made a complaint against Khan after he became aware that he was trying to contact her over the phone.

53. Anwer said that he did meet her daughter every Saturday, maintained contacts and did communicate with her over the phone. SH, however, did not complain that she was being raped during her stay with her mother.

54. Ladies and gentleman, you heard SH's religion teacher IfrazUd Din (Din) giving evidence next. Din said that he gave a statement to Police on 12th October 2011 regarding some information he shared with his student, SH, on Facebook. On 7th October 2011, SH had informed him she had been raped by a boy named Sahmeel Khan. SH had told him that her friend, nick-named Pups, had been implicated in the rape allegation and that she wanted Pup's name to be cleared and Sahmeel to be taken by the Police as it was Sahmeel who had raped her. Shehad told that she might even commit suicide if something happened to Pups. Din became suspicious of the relationship SH had with Pups but she had only told him that Pups was having telephone conversations with her. 

55. Prosecution called the Charging Officer, DC.3156 Ravinesh, next. Ravinesh said that he charged the Accused Khan on 12th October 2011 at the Namaka Police Station. Interview was in English, his preferred language. Ravinesh was satisfied that the Accused was well versed in English and understood the charge. Khan made no complaint about the interview. He signed the charge statement voluntarily. Charge statement was marked as PE.2 and a copy of which was given to each of you.

56. DC. Ravinesh was cross examined on the basis that the Accused was never given his rights, including the right to choose the language he wished to be interviewed; that he was not explained the meaning of words 'Unlawful Carnal Knowledge'; and that the statement was not read back to the Accused before he signed it. The witness denied all the assertions put to him by the Defence.

57. Prosecution called the Supervising Officer IP Sumesh next. He said that, the Accused was interviewed by DC. Aravind and was charged by DC Ravineshat the Namaka Police Station under his supervision. The Accused was interviewed and charged in English as it was his preferred choice of language and he was explained the meaning of words 'Unlawful Carnal Knowledge'. He did not complain to anyone of anything before or during the interview. DC. Ravinesh denied threatening the Accused or obtaining his signature by force. 

58. IP Sumesh admitted, in cross examination, that the Accused was interviewed twice. At the first interview held on 4th October 2011 at Sabeto, Accused denied the allegation and was later released as his alibi was established to be true. He also admitted that another suspect, nick-named Pups, was also involved in the same rape allegation. Pups too was released as there was no complaint against him by SH, the victim, although Pupshad admitted the allegation of Rape. 

59. You will remember, the Interviewing Officer DC1898 Aravind then gave evidence. He was also the Investigating Officer in this case.DC. Aravind said that when he was based at Sabeto Police Station in 2011, he inquired into a complaint made on 2nd October 2011by Fatima Nisha. Fatima had complained that her underage daughter SH was having an affair with anadult by the name of 'Pups' alias Praneel. 

60. In the same night, DC Aravind went to Anwer's place at Namaka to investigate the complaint.He asked SH whether the allegation put by her mother was correct. She answered in the negative and said that she had sexual intercourse with Mohammed Sahmeel Khan, the Accused in the present case.Khan was then asked to come to the Sabeto Police Station on 2nd October 2011 and was interviewed with regard to forceful sexual intercourse alleged to have taken place with SH. Khan denied the allegation and was released on the same day without framing any charge.

61. On the instructions of Crimes Detective Officer Sumesh Prasad, DC Aravind conducted further investigations after obtaining the birth certificate from her school to ascertain SH's age.In view of some witness accounts that were recorded, he summoned Mr. Khan again on the 11th of October 2011 for further questioning, this time to Namaka Police Station. 

62. Having been given all his rights upon arrest, including the right to Counsel, Khan was interviewed under caution in respect of the alleged unlawful sexual intercourse with SH. Interview was conducted in English, the preferred choice of language of the Accused and was supervised by Detective Inspector Sumesh Prasad. The Accused was not assaulted or threatened before or during the interview. Nor were there any promise or inducement held out to the Accused. Accused gave the interview voluntarily. His father was also present when the interview was going on. The witness read the statement back to the Accused. Having admitted the content of the statement, the accused signed it. You will remember Ladies and Gentleman, each of you were given a copy of the cautioned interview statement signed by the Accused and countersigned by the witness, tendered in his evidence marked 'PE.3',for your perusal. You were also given a copy of the birth certificate of the victim marked 'PE.4'.

63. Witness Aravind admitted that Anwer had made a complaint against the Accused in May 2011 and an investigation had been carried out regarding an affair with Anwer's daughter SH. 
64. In cross examination, witness DC Aravind denied threatening or making abusive remarks at the interview. The Accused, though he was an Indo Fijian, opted to be interviewed in English. He was satisfied that the Accused was able to read and understand what was written in English. He denied that he failed to explain to the Accused the meaning of words 'Unlawful Carnal Knowledge'. He also denied that failure by a Witnessing Officer to sign the interview statement was an irregularity.

65. After the Prosecution case was closed, you heard me explain the Accused's rights in defence. His rights were explained not because the Accused had to prove anything. I had to do so since I am required, in law, to do so.

66. You will remember at that point of time the Accused elected not to give evidence. He had all the right to do so as he had nothing to prove in this case. The burden of proof is always on the prosecution to prove the charge beyond reasonable doubt. You must not draw any negative inference from his choice to keep silent and think that the Accused did not give evidence because he was guilty. 

67. Defence called Mr. Mohammed Yunus as its first witness. He gave evidence about rumours going around in the neighbourhood of SH. You will remember, the Prosecution Counsel strongly objected to his evidence being led and said that he was giving 'hearsay evidence'. The court upheld the objection. As described earlier, witnesses are only allowed to give evidence on what they saw, heard or felt by their physical senses only. They are not allowed to relate, as evidence, a story told by a third person who is not called as a witness. Yunus said that he made a report to the Police against Pups, relying on the information provided by a boy named Thurusi. Counsel for the Accused informed court that she was not calling Thurusito give evidence and conceded that witness Yunus was giving hearsay evidence. I decided, at that stage, to exclude Yunus's evidence. You must not, Ladies and Gentleman, give any weight to evidence given by Mr. Yunus as his evidence was considered by court as hearsay evidence.

68. Mother of SH, Nisha, was then called to give evidence as a defence witness. She said that on 15th May 2011 Anwer, her de facto partner, sent SH to her place complaining that she was misbehaving, despite Anwer had been awarded full custody of SH by Court. SH stayed with her until 02nd of October 2011 when her father came and took her away.During the period SH stayed with her, SH was treated well and was attending school. But she was aggressive and did not listen to her. 

69. Mohammed Yunus, the president of the Criminal Committee, informed Fatima that he had received information that her daughter was having a sexual relationship with an adult named Pups.Yunus wanted to make a report in this regard to police. She did not object to it as she too had verified the information from the informant. But she did not inquire about this from her daughter SH as she feared SH would inform Pups about it and hamper the Police investigation.

70. Khan, Fatima's cousin used to come to her place once a month to help her with her business.Khan had stayed only one night at her place. Khan slept on a separate bed and she shared her bed with her daughter in that night. She was not aware that her daughter was having a relationship with Khan. SH never informed her that Khan had raped her. 

71. Fatima said in cross examination that she did not want to protect her cousin,Khan and give evidence against her daughter. She only wanted justice to be done as her daughter had been coached to put Khan in trouble. 

72. Fatima denied neglecting her daughter and having improper relationships with men. She also denied encouraging her daughter to get closer to Khan, leaving her alone with him and partying and clubbing with friends drinking alcohol. 

73. Defence called Praneel Praneeth Ram alias Pups as its next witness. He denied that he was in a boyfriend-girlfriend relationship with SH. He knew her only as a customer of the internet shop her mother was running in Sabeto. 

74. He said that he was taken into custody, beaten up and took his signature to a statement by force on 8th October 2011. 

75. He said in cross examination that Khan came to his house after he was served with summons by the Defence Counsel and asked to admit the allegation in the statement. Khan had assured that nothing will happen to him and both of them would be freed if he admitted the allegation. 

76. Waisake was the last witness for the Defence. He said that he worked seven days a week as security personnel at a shop next to the Internet shop run by Nisha in Sabeto. He gave a statement to the Police regarding an incident happened at Nisha's shop. One night Nisha went for a party, leaving her daughter alone. When Nisha went out, Pups came in to the shop. He stopped Pups coming in. However, the girl inside the shop wanted him in.He allowed him to go inside the shop. Pups was in the shop for a while, spent a few minutes, and left. He said further that he had not seen the Accused coming to the shop. 

That was the case for the Defence. 

77. I have summarized evidence I thought important to you in light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all the evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence. You are the judges of facts. You are free to consider the evidence in its entirety and come to your own conclusions. 

78. The Prosecution based its case mainly on the evidence of the Victim, SH and the cautioned interview statement of the Accused that was marked PE.3.If you are satisfied that the evidence SH gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion. 

79. Please remember, there is no rule in Fiji for you to look for corroboration of victim's story to bring home an opinion of guilt in a Rape case. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration in that sense is, therefore, only to have some independent evidence to support or to test the consistency and credibility of the victim's story of Rape. You can consider in this regard the documentary evidence such as the medical report and the cautioned interview statement of the Accused apart from other oral evidence led in the trial. 

80. If you are satisfied that SH had told truth and her evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved each element of the Information beyond reasonable doubt.

81. There is no issue in this case with regard to the identity of the Accused. It was agreed by the parties at the commencement of the trial that the Victim and the Accused are related to each other and the Accused used to visit the Victim and her family in Sabeto during the period of allegation. 

82. The Prosecution alleges in the Information that the Accused raped SH, a twelve years old, during the period between 1st of July 2011 and 5th day of September 2011. According to the copy of the birth certificate you were given, the victim was born on 19th September 1998 and was less than 13 years old during the period mentioned in the Information. As I have stated earlier, a child under age of 13 years is considered by law as a person without necessary mental capacity to give consent. So, the prosecution does not have to prove that the act of penetration occurred without her consent. 

83. The only question to be decided in this case is whether the Accused penetrated the vagina of SH to any extent with his penis. SH said in her evidence that Khan injected her private part into her private part on two occasions, once in August and again in early September 2011. 
84. You have to consider how probable or improbable is the evidence given by witnesses. We as judges, generally use this test to evaluate the credibility of a witness. That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his or her evidence is improbable given the circumstances of the case. However, you are not bound by this test and you are free to use your common sense as members of public and come to your own finding.

85. SH told us that her mother Fatima encouraged her to have an intimate relationship with Khan, her adult cousin. Fatima even allowed her daughter to share the same bed at night with Khan when he used to visit them. Fatima, however, denied having done so. Generally, such behaviour towards a daughter by a mother is highly improbable. However, you have to decide that point in the context of this case. You decide the truthfulness of Fatima's evidence and that of her daughter about her mother's behaviour and come to your own conclusion.

86. You will remember SH told us that from May 2011, Khan tried to have sexual intercourse with her several times. One day in August 2011, Khan's attempt was successful when he injected his private part into her private part. She said that it happened with her consent.
87. In early September, SH sometimes had fights with Khan and did not consent him to have sexual intercourse. Still he kept on coming and did many acts that she did not like. He touched and kissed her forcefully and had sexual intercourse without her consent. 

88. SH had not informed or complained promptly about incidents of Rape to her parents, friends, relatives, teachers or anybody else. Khan's name came to light only when a Police party visited her on 2nd October 2011 to investigate the Rape complaint lodged by her mother against her boyfriend, Pups. She said, in cross examination, that if somebody punched or did something bad to her she would have complained it to her teachers or parents. You might wonder why she had failed to complain about the Rape, a more severe assault, promptly. Was it because such incidents never took place? Or was it because she had reasonable reasons not to complain? It is up to you to decide. 

89. You might think, as the Counsel for the Prosecution suggested, that SH had no reason to complain about the rape incident as it happened with her consent. However, incident in early September had happened without her consent. Khan had touched, kissed and had sexual intercourse, without her consent. As I said earlier, given her age, victim's lack of consent is immaterial in this case as an element to be proved in a Rape case. However, when it comes to evaluating credibility of her evidence, you have to analyse lack of recent complaint evidence about something serious that had happened to her, without her consent, and its effect on the credibility of her evidence.

90. Religion teacher Din said that SH was greatly frustrated and wanted to commit suicide if something happened to Pups. SH had told her grievance to Din on 7th October 2011 when the investigation against Pups was in progress. Din was counselling and helping to pacify SH. Din was her role model. Din had given his statement in this context to Police on 12th October 2001,five days after he heard about the story from SH.

91. If you believe Din, you decide what type of a relationship SH had with Pups and whether that relationship in anyway motivated her to tell a fabricated story to Police. You should also be mindful that the first complaint to Police was made by SH's mother against Pups and investigations against Khan started only when SH mentioned his name during the course of investigation against Pups. 

92. You should also be mindful that Anwer had a grudge with Fatima. Khan was her cousin. Anwer had a motive to go against Fatima and her cousin. SH said in cross examination that she was coached by her father. Later she denied that she was coached. 

93. Ladies and Gentleman you have to consider how consistent SH was in her evidence. That is whether she was telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. 

94. SH had told police in her statement on 04th October 2011 that the Rape incident in August happened during night. In her evidence she told us that it happened during daytime. She said that her statement to Police was not correct. 

95. You have before you the cautioned interview statement and the charge statement of Khan in which he had admitted the allegation of unlawful carnal knowledge. He had not admitted the allegation when he was first interviewed on the 4thof October 2011. Defence Counsel cross-examined the Police witnesses on the basis that the Accused had not understood the nature of allegation against him and his signature was obtained by force. Police witnesses denied those allegations. It is for you to assess what weight should be given to those documents. If you are not sure, for whatever reason, that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it. 

96. You watched SH giving evidence in Court.What was her demeanour like? How does she react to being cross examined and re-examined? Was she evasive? How she conducted herself generally in Court? It is up to you to decide whether you could accept her version.

97. In dealing with the issue of penetration, medical evidence in this case is of little help as there was considerable time gap between the alleged incident of Rape and the medical examination. You may consider the issue of penetration in light of doctor's opinion and other evidence led in the trial.It is entirely a matter for you to be satisfied that the absence of hymen in SH's vagina is a result of penetration with Accused's penis. 

98. Remember, the burden to prove the Accused's guilt beyond reasonable doubt lies with the Prosecution throughout the trial, and never shifts to the Accused, at any stage of the trial. The Accused is not required to prove his innocence, or prove anything at all.In fact, he is presumed innocent until proven guilty.

99. If you accept the Prosecution version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of Accused's guilt of the charge you must find him guilty. If you do not accept the Prosecution's version of events, and you are not satisfied beyond reasonable doubt, so that you are not sure of the Accused's guilt, you must find him not guilty as charged. 

You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
100. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 20th July 2015 

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