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State v Prasad [2022] FJHC 117; HAC 18 of 2018 (11 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 18 of 2018

STATE

V

NITESH NAVIN PRASAD

Counsel : Mr. T. Tuenuku for the State.
: Ms. A. Bilivalu for the Accused.


Dates of Hearing : 07, 08, March, 2022
Closing Speeches : 09 March, 2022
Date of Judgment : 11 March, 2022

JUDGMENT

(The name of complainant is suppressed she will be referred to as “SD”)

1. The Director of Public Prosecutions charged the accused by filing the following information:
   

COUNT ONE
Statement of Offence

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

Particulars of Offence

NITESH NAVIN PRASAD on the 14^th day of October, 2012 at Ellington, Rakiraki, Ra in the Western Division, penetrated the vagina of “SD” with his penis without the consent of the said “SD”.

COUNT TWO
Statement of Offence

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

Particulars of Offence

NITESH NAVIN PRASAD on the 17^th day of October, 2012 at Ellington, Rakiraki, Ra in the Western Division, penetrated the vagina of “SD” with his penis without the consent of the said “SD”.

2. In this trial, the prosecution called two witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer in respect of both the offences as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   
4. The accused is charged with two counts, the evidence in respect of each

count will be considered separately from the other if the accused is guilty of one count, it does not mean that he is guilty of the other count as well. This also applies with the findings of not guilty.

ELEMENTS OF THE OFFENCE

5. To prove both counts the prosecution must prove the following elements of the offences of rape beyond reasonable doubt:
   

(a) The accused;

(b) Penetrated the vagina of the complainant “SD” with his penis;

(c) Without her consent;

(d) The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.

6. In this trial the accused has denied committing the offences of rape. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his penis without her consent and the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
   
7. The first element of the offence is concerned with the identity of the person who allegedly committed this offence.
   
8. The second element is the act of penetration of the complainant’s vagina by the penis.
   
9. The third element is that of consent, which means to agree freely and voluntarily and out of her free will. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all. Furthermore, submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
   
10. If this court is satisfied that the accused had penetrated the vagina of the complainant with his penis and she had not consented, then this court is required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.
    
11. To answer the above this court will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.
    
12. If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated his penis into the complainant’s vagina without her consent then this court must find the accused guilty as charged.
    
13. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of rape, then this court must find the accused not guilty of either or both offences.
    
14. The slightest of penetration of the complainant’s vagina by the accused penis is sufficient to satisfy the act of penetration.
    
15. As a matter of law, I direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.
    

ADMITTED FACTS

16. In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
17. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.
    

PROSECUTION CASE

18. The complainant informed the court that in 2012 she was residing at Ellington, Rakiraki with her mother, her step father (the accused) and her younger sister, Shoyal in the one room house of the accused.
    
19. In the night of 14^th October, 2012, the complainant was at home with the accused, her mother and Shoyal. During the night, all were sleeping on a mattress, first the accused, followed by her mother, then the complainant and finally Shoyal.
    
20. The complainant was sleeping sideways, the accused came pulled her to face up, removed her clothes and put it inside her mouth and came on top of her. It was dark inside so she could not see his face clearly but she saw his hand. The accused had forceful sexual intercourse with her for 5 minutes. The complainant further stated that it was when she was screaming, the accused had put her clothes inside her mouth.
    
21. The complainant was wearing jeans and top the accused quickly removed her jeans and panty together and placed his legs on top of her legs and then pulled her top up. The complainant folded her legs to stop the accused, but he continued and pressed her hands with his.
    
22. The complainant inserted his erected penis into her vagina by force. After the accused had finished, he left her at this time the complainant shouted to her mother and said “what is happening” because her mother was watching the accused having sexual intercourse with her. Next day she reported the matter to the police and then went to her sister Anjini Vikashni Devi’s house and told her what the accused had done to her.
    
23. On 17^th October, 2012 at about 10.00 am the complainant was alone with the accused after her mother had left for the hospital and her younger sister Shoyal had gone to school. The complainant was washing dishes outside the house when the accused came from behind, dragged her to the house and pushed her inside the house. The complainant fell on her back facing up.
    
24. The accused removed her clothes, she was wearing a top and skirt. The accused removed her panty first and then the top, the skirt was pulled up when the accused was doing this, he was on top of the complainant. The complainant was pushing the accused, he pressed her legs with his knees, and then had forceful sexual intercourse by inserting his penis in her vagina for about 2 minutes. After the accused left, the complainant went to her neighbour Boxer’s house. At the neighbour’s house she told them what had happened.
    
25. Thereafter, she went and reported the matter to the police and told her sister Anjini about what the accused had done to her. Anjini kept the complainant at her house for nearly 3 weeks and then told her to leave. The complainant then continued to live with her other relatives by moving from one place to the other.
    
26. The complainant’s mother and her sister Anjini are not in talking terms with her after the incidents. She further stated that since the accused came in their life, her family has been separated. The complainant maintained that the accused had done what she had told the court and that she was not framing anyone. The complainant identified the accused in court.
    
27. In cross examination, the complainant disagreed that Junior the son of the accused was already born in October, 2012. When suggested that at the time of the incidents Junior was 6 months old staying with the accused and her mother the complainant could not recall this. The complainant maintained on 14^th October, 2012 as far as she could recall there were only four of them living in one house namely the accused, her mother, sister Shoyal and her.
    
28. According to the complainant, there was only one mattress and all four of them were sleeping on one double bed mattress in an open room. When asked to confirm whether the accused was sleeping beside her mother or beside her, the complainant explained the accused was sleeping beside her mother then it was her and beside her was her sister. The complainant agreed the accused was not sleeping beside her that night.
29. The complainant was referred to her police statement dated 5^th June, 2013 line 27:
    

“I still recall on 14^th of October, 2012 during the night, I was sleeping beside step father”.

30. When asked if she agreed that was what she told the police officer writing her police statement, the complainant responded by saying that whatever she told the court was what she had told the officer.
    
31. In respect of the cloth put in her mouth, the complainant stated that she does not know what type of cloth was in her mouth. First the accused had put the cloth in her mouth and then he removed her clothes to stop her from shouting. As a result, she was having difficulty in breathing, her stomach and knees were paining as well. There were no injuries or bruises on her body.
    
32. When questioned whether her sister had woken up at any time when she was struggling with the accused, the complainant stated her sister did not wake up but her mother was watching everything the accused had done to her. The complainant maintained that on that night, the accused had forceful sexual intercourse with her she denied making up the allegations. When further questioned that she did not like her mother being in a relationship with the accused and hence this allegation the complainant responded as follows:
    

“He has done that to me it is not my hobby to tell a lie and I won’t be wasting my time standing here if it was not true...”

33. When it was put to the complainant that it could not have been that it was the accused who had sexual intercourse with her that night because she did not see his face. The complainant replied:
    

“There was no one else in the house, it was me, my sister, my mother plus him, my step father who was in the room and during the day he did that to me too and then telling that he hasn’t done it.”

34. When asked whether her hands were free, the complainant said that the accused had pressed her hands hard with his hands but she did not receive any injuries or bruises on her hands.
    
35. In respect of the second incident, the complainant maintained that she did not go with her mother to the hospital. She was at home with the accused and the incident had happened. It was after the incident that she had gone to her neighbour’s house namely Boxer. Boxer was the first person she had told about the second incident and when her mother returned from the hospital she told her mother but she did not believe her.
    
36. The complainant stated that she went to her sister Anjini’s house twice, first time she went after the first incident and second time she went after the second incident and it was after the second incident she stayed at her sister’s house for 3 weeks.
    
37. When it was suggested that she had gone to Anjini’s house in the year 2013, the complainant said that after the rape incidents, same time after reporting to police, she went to her sister’s house. When asked to explain how she had fallen when pushed by the accused in respect of the second incident, the complainant stated she fell backwards. It was a hard fall on the concrete floor but the complainant did not receive any scratches or bruises but only had back pain.
    
38. After the second incident, the complainant wanted to go back to the house, but she was not allowed in by the accused.
    
39. The complainant maintained that she was not lying in court. The accused had done what she told the court that is why she had come to court. The complainant stated that no one had forced her to make this complaint against the accused, she further mentioned that the incidents had happened, she denied threatening the accused on one occasion that she will ensure he was separated from her mother.
    
40. The final witness Anjini Vikashni Devi informed the court that the complainant is her elder sister who had only once in 2012 told her that she was raped by the accused and then the matter was reported to the police.
    

RECENT COMPLAINT DIRECTION

41. Complainant’s of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
    
42. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight is to be given to the fact that the complainant told her sister Anjini that the accused had raped her.
    
43. This is commonly known as recent complaint evidence. The evidence given by Anjini is not evidence of what actually happened between the complainant and the accused since she was not present and she did not see what had happened between the complainant and the accused.
    
44. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told her sister Anjini about what the accused had done to her in respect of one of the incidents as soon as it had happened.
    
45. Furthermore, the prosecution submits that the circumstances of the complainant was such that she had to report the matter first at Rakiraki Police Station and then go to Mallau, Rakiraki to her sister’s house and inform her about what the accused had done to her.
    
46. The prosecution is asking this court to consider that the complainant did relay relevant and important information to Anjini which was that it was the accused who had raped her and therefore she is more likely to be truthful.
    
47. On the other hand, defence says the complainant had made up a story against the accused to implicate him. There are two alleged incidents the complainant after reporting the first incident went to Anjini’s house and for the second incident she went to Boxer’s house. Boxer did not come to court to give evidence that he was told by the complainant that the accused had raped her.
    
48. Furthermore, the complainant should not be believed that she had told her sister about being raped by the accused due to her personal dislike for her mother and the accused. She had no choice but to make up a story of being sexually abused by the accused.
    
49. It is for this court to decide whether the evidence of recent complaint helps this court to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is for this court to decide whether the complainant is reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
    
50. In cross examination, this witness stated that the complainant had told her about the rape incident in 2012. When the witness was shown her police statement dated 7^th March, 2014 she stated that she can clearly recall the complainant had come to her in the year 2012 and not year 2013 as mentioned in her police statement. The complainant had not informed her on what date the incident had happened.
    

PREVIOUS INCONSISTENT STATEMENT

51. This court directs its mind to the fact that the defence counsel during cross examination of the complainant and Anjini had questioned these witnesses about some inconsistencies in their police statements which they had given to the police when facts were fresh in their minds with their evidence in court.
    
52. This court is allowed to take into consideration the inconsistencies between what these witnesses told the court and their police statements when considering whether these witnesses were believable and credible. However, the police statements are not evidence of the truth of its contents.
    
53. It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
    
54. If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witness. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
    

55. This was the prosecution’s case.

DEFENCE CASE

56. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination and also called one witness. This court must also consider their evidence and give such weight as is appropriate.
    
57. The accused informed the court that in October, 2012 he was living in Ellington, Rakiraki with his wife Karuniya Devi also known as Kanya Devi, his son Dinesh, the complainant and Shoyal. The complainant and Shoyal were his wife’s daughters from her earlier marriage. In October, 2012 his son Dinesh was about 6 to 7 months old baby.
58. In the night of 14^th October, 2012 the accused was sleeping with his wife and son on one double bed mattress whereas the complainant and Shoyal were sleeping on another mattress. The mattresses were 2 meters away from each other.
    
59. The accused denied committing the offence of rape as alleged by the complainant on 14^th October, 2012. He said that he never did anything to the complainant as alleged since he was asleep. On this night he was wearing shorts and t-shirt.
    
60. On 17^th October, 2012 at about 10 am he was preparing the bullocks to work in the farm no one was at home at this time. The complainant had left home at about 7 am with his wife to be at Boxer’s house while his wife went to the hospital. On this day the complainant came home at about 3 pm to 3.30 pm, however, his wife had returned from the hospital at about 1pm.
    
61. When the complainant came home with Shoyal she wanted to eat chicken, his wife gave $12.00 to buy one from the shop but after taking the money the complainant did not return. According to the accused the complainant came to his house in 2012 and his relationship with her was good and “everything was good”.
    
62. The accused denied raping the complainant on the 17^th as alleged he stated that no one was at home and he was in the farm.
    
63. In cross examination, the accused stated in July, 2010 he, Kanya Devi, and Shoyal had moved to Ellington and it was in 2012 the complainant came. He was the one providing for everyone when the complainant came home she was looking after his son while he and his wife were working on the farm.
64. The farm did not belong to the accused but to a police officer and the arrangement was for the accused to plant sugar cane and vegetables. After selling vegetables they were able to get some cash. Boxer was his neighbour about 500 to 600 meters away.
    
65. The accused agreed that on the night of the 14^th he was the only male adult in the house. There was no partition and he could stand up from where he was sleeping to go to where the complainant and Shoyal were sleeping.
    
66. The accused denied the allegation that he had raped the complainant in the night of 14^th October. He said that he was fast asleep and he did not do anything as alleged.
    
67. The accused also denied raping the complainant on the 17^th he said that the complainant was not at home but was dropped by his wife at Boxer’s house. It is safer for the children to stay there since he was in the farm and his wife was not at home. According to the accused the children were safe with the lady in Boxer’s house.
    
68. The final defence witness Karuniya Devi informed the court that the accused is her husband, they have been together for the last 12 years and they have a son. From her previous marriage she has 4 children and the complainant was her daughter.
    
69. In October, 2012 her son Dinesh was about 6 to 7 months old. The family used to sleep on two mattresses separately. On one mattress she slept with the accused and her son and the complainant and Shoyal slept on another mattress. In the night of 14^th the witness was sleeping closer to the complainant and Shoyal.
    
70. The witness maintained that the accused did not rape the complainant that night and also the complainant did not tell her anything about this incident. Furthermore, the witness stated that since she was breastfeeding her son she would wake up every now and then to feed the baby and she would check the others as well. The lantern was lit and the light was enough to see everyone sleeping in the room.
    
71. On the 17^th at about 7 am the witness had taken her son for a check up to the hospital and on the way she dropped the complainant at Boxer’s house. The reason for doing this was because she did not have much fare and normally she did not leave the complainant at home while her husband would be working on the farm.
    
72. The witness returned from the hospital between 11 am and 12 noon, no one was at home the complainant was at Boxer’s house and both Shoyal and the complainant came home at about 3 pm. When the complainant came home she did not want to eat dhal and rice but wanted to eat chicken so she gave her $12.00. After taking the money the complainant did not come home, before leaving for the shop the complainant did not raise any complaints against the accused. According to the witness, the complainant did not tell her that the accused had raped her.
    
73. In cross examination, the witness agreed that the accused has been looking after her and her children, he provided them with a house and gave them everything they needed. The witness loves the accused very much upon further questioning she stated that in the night of 14^th October, she was basically awake but did not see the accused raping the complainant.
    
74. The witness once again maintained that the accused did not rape the complainant as alleged and also that the complainant had not told her the accused had raped her.
    
75. On the 17^th the witness was not at home at about 10am, she denied that when she returned home from the hospital the complainant had told her that the accused had raped her. When it was suggested that she did not report the incidents to the police because of her fear that the accused will leave her, the witness said “my husband haven’t done that thing”. The witness denied that she has not been talking to the complainant because the complainant had reported the matter to the police. The witness stated that after the complainant got married she has stopped talking to her.
    

76. This was the defence case.

ANALYSIS

77. The prosecution alleges that the accused the step father of the complainant had forceful sexual intercourse with her on two occasions inside his house. The first incident was on 14^th October, 2012 in the middle of the night when everyone was fast asleep. The accused stealthily went over to where the complainant was sleeping sideways pushed her to face upwards, removed her clothes and to prevent her from screaming stuffed clothes in her mouth knelt on her knees, pressed both her hands and had sexual intercourse with her without her consent. The complainant had struggled but this was not enough to stop the accused from what he did.
    
78. The mother of the complainant was awake after the accused had finished the complainant told her mother but she did not do anything. The complainant reported the matter to the police the next day and then told her sister Anjini. The prosecution states that it was the accused because he was the only male adult in the house at the time and the only reasonable inference that can be drawn from the circumstances is that it was the accused and no one else.
    
79. In respect of the second incident the prosecution states that on 17^th October, 2012 at about 10 am the complainant and the accused were alone. The complainant was washing the dishes when the accused came from behind dragged her into the house and pushed her on the floor removed her clothes pushed a cloth in her mouth and had sexual intercourse without her consent.
    
80. After the accused was finished he left and the complainant went to the house of their neighbour namely Boxer. Later the same afternoon she reported the matter to the police and went to the house of her sister Anjini. The complainant told Anjini about what the accused had done to her and she stayed there for three weeks.
    
81. On the other hand, the defence says the allegations are baseless lies, made up story by the complainant who had a personal dislike for the accused and her mother. The complainant was an adult who had come to live in the house of the accused in 2012. She took advantage of the fact that the accused was the only male adult in the house so she made this story to implicate him.
    
82. Furthermore, there is no compelling evidence that it was the accused who had raped the complainant that night. In the words of the complainant there was no light it was pitch dark and she did not see the face of the person who had forceful sexual intercourse with her. The complainant lied that her mother was watching the accused having sex with her.
    

TURNBULL DIRECTIONS

83. In respect of the first count the defence has taken the position that the complainant had made a mistake in thinking that it was the accused who had raped her for someone else so she had identified the wrong person in court.
    
84. This case against the accused in some respect depends on the correctness of the identification of the accused which the defence alleges to be mistaken. I have therefore taken special care on the evidence of identification because it is possible that an honest witness can make a mistaken identification. An apparently convincing witness can be mistaken and so can a number of apparently convincing witnesses. I wish to also remind myself that mistakes in recognition, even of close friends and relatives, are sometimes made.
    
85. I have carefully looked at the following circumstances in which the identification by the complainant was made:
    

How long did she have the person she says was the accused under observation?

According to the complainant the accused had sexual intercourse for about 5 minutes.

At what distance?

This person was on top of her for most of the five minutes.

In what light?

According to the complainant there was no light in the room.

Did anything interfere with that observation?

The complainant did not say there was any obstruction or interference because she was able to see the hand of the accused.

Had the witness ever seen the accused before?

The complainant and the accused were living together in the same house and they were in a step father and step daughter relationship.

86. I must remind myself of the following specific weaknesses which appeared in the identification evidence of the complainant. The complainant said it was dark and she was unable to see the face of the accused clearly.
    
87. I have given the above directions as a matter of caution after the defence had raised the issue of identification of the accused in the dark surrounding of the house. This court also takes note of the fact that the accused was the only adult male sleeping in the house not far from the complainant.
    
88. The defence further says after the incident the complainant did not do anything to wake her sister Shoyal and alert her of what the accused had done, but she waited till the next morning and then reported the matter to the police. Moreover, if the complainant was raped on the 14^th the first incident then why did she go back to the house of the accused?
    
89. In respect of the second incident the defence submits if indeed the complainant had gone to Boxer’s house after being raped by the accused then why she wanted to go back to the house of the accused.
    
90. Finally, the defence says the complainant did not tell the truth she has framed the accused to get rid of him which she has partially succeeded in by getting him charged for something he has not done. The defence is asking this court not to believe the complainant who was not consistent in her evidence and the description she gave of what had happened to her does not make sense. The complainant has falsely implicated the accused motived by her dislike towards her mother and the accused.
    

DETERMINATION

91. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
    
92. After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a coherent account of what had happened to her, she was also able to withstand cross examination and was not discredited.
    
93. I did notice that the complainant being an unsophisticated, simple villager was initially shy and reluctant to talk in detail about what had happened to her, this attribute is a natural occurrence for some which is understandable. In my judgment the passage of time of about 10 years from the date of the allegations also had an effect on the complainant. Nevertheless the complainant eventually expressed herself clearly and was able to give explicit details about what the accused had done to her.
94. I have no doubt in my mind that the complainant told the truth in court her demeanour was consistent with her honesty. The complainant was consistent in narrating what the accused had done to her on both occasions.
    
95. I do accept that the complainant had promptly reported both the incidents to the police. This aspect was not disputed by the defence. Furthermore, on the evidence it was obvious that the complainant had nowhere to go after the first incident hence she was compelled to go back to the house of the accused again.
    
96. In my view the accused knew the situation of the complainant and that made him have forceful sexual intercourse with her for the second time in close proximity of the first incident. There were some inconsistencies between what the complainant told the court in her evidence in chief and cross examination but it was not significant to adversely affect her credibility. The narration of the two incidents was clear and worthy of belief.
97. 97. The complainant did inform her sister Anjini about what the accused had done to her in respect of the first incident and to her neighbour Boxer about the second incident. Anjini had informed the court that it was in 2012 the complainant had told her that she was raped by the accused. This shows the complainant was consistent in her conduct. Even though Boxer was not in court to confirm what he was told by the complainant I accept the evidence of the complainant that she had told Boxer why she was at their house and that the accused had raped her. The absence of Boxer’s evidence does not create a doubt in the complainant’s evidence in respect of the second count.
98. Even though the complainant and Anjini were referred to their police statements and then compared with their evidence in court the inconsistencies were not significant to affect their credibility. The incidents happened some ten years ago so one cannot be expected to carry a photographic memory of what had happened then. The discrepancies did not go to the root of the complainant’s allegations and did not shake the basic version of her testimony.
99. The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) had made the following pertinent observations about the above at paragraphs 15 and 16 as follows:

[15] It is well settled that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be discredited or disregarded. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witnesses. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of incidents, minor discrepancies are bound to occur in the statements of witnesses.

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

100. For completeness I would like to also add that this was not a case of late reporting by the complainant but a case of delayed police investigation judging from the dates of the two police statements put to the prosecution witnesses. The complainant told the court of her promptness in reporting both the incidents to the police which I accept as truthful.
     
101. I reject the defence contention that the complainant had a motive to get rid of the accused, in his evidence the accused said that he had a good relationship with the complainant and as he put it “everything was good”. On this basis, I do not see any reason why the complainant would raise false allegations against the accused.
     
102. On the totality of the evidence the only reasonable inference that can be drawn in respect of the first incident is that it was the accused and no one else, who had sexual intercourse with the complainant without her consent on the night of 14^th October, 2012.
     
103. As for the fact that the complainant would not have come back to the house of the accused if she was raped once it can be inferred from the evidence that since the complainant had nowhere to go and stay after the first incident she had no option but to go back to the house of the accused. It was only after the second incident that the complainant’s sister Anjini accommodated her for three weeks only.
     
104. I also find that Anjini the complainant’s sister was a truthful witness she told the truth when she said that the complainant had told once in 2012 that the accused had raped her and the matter was reported to the police.
     
105. On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. It is difficult to accept that the accused had nothing to do with the complainant in respect of both the incidents. The demeanour of the accused was not consistent with his honesty he was deliberately not telling the truth when he said he did not do anything to the complainant on both occasions.
     
106. The accused was also not forthright in his evidence there were instances when he did not answer questions in a straight forward manner. He did not tell the truth when he denied the allegations. I reject the evidence of the accused as unreliable and untruthful.
     
107. The defacto wife of the accused Karuniya Devi was also not a truthful witness it was obvious to me that was she was protecting the accused. This witness made it clear that she is dependent on the accused and he was the person who had supported her with everything she wanted.
     
108. From the demeanour of this witness it was obvious that she could go to any length to protect the accused. I also noted that this witness was answering questions before the interpretation in Hindi would finish. She did not tell the complete truth when she told the court that she did not see what was happening in the house and also about the fact that the complainant had not made any complaints to her about what the accused had done.
     
109. I reject the evidence of Karuniya Devi as unworthy of belief as well. This witness has a vested interest in making sure that the accused was not in any trouble whatsoever.
     
110. It appeared to me that both the defence witnesses were accomplishing a common theme which was apparent from their evidence.
     
111. This court accepts the evidence of both the prosecution witnesses as reliable and credible. On the other hand this court rejects the defence of denial as untenable and implausible on the totality of the evidence.
     

112. The defence has not been able to create a reasonable doubt in the prosecution case.

CONCLUSION

113. This court is satisfied beyond reasonable doubt that the accused on 14^th October, 2012 penetrated the vagina of the complainant “SD” with his penis without her consent.
     
114. This court is also satisfied beyond reasonable doubt that the accused on 17^th October, 2012 penetrated the vagina of the complainant “SD” with his penis without her consent.
     
115. Furthermore, this court also accepts in respect of both counts that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
     
116. In view of the above, I find the accused guilty of two counts of rape as charged and he is convicted accordingly.
     
117. This is the judgment of the court.

Sunil Sharma
Judge

At Lautoka
11 March, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.