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State v Shankar [2010] FJMC 38; Criminal Case 408 of 2008 (21 January 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 408/08

Between

THE STATE

And

HARI SHANKAR S/O Ram Shankar

JUDGEMENT

1. The accused in this case is charged with the offence of Indecent exposure. The charge reads as follows;
   

Statement of Offence

Indecent exposure; contrary to section 154(4) of the penal Code, Cap 17.

2. Particulars of Offence reads as follows:
   

Hari Shankar S/O Ram Shankar on the 10th day of February, 2008 at Lautoka in the western division with intend to insult the modesty of a woman namely Roshani Devi d/o Ganga Prasad exhibited his object namely penis intending that such object be seen by the said Roshani Devi d/o Ganga Prasad thus likely to offend her modesty.

Background

3. This case was reported to court on the 30th June 2008. It was taken up for hearing on the 07th December 2009. The alleged offence has been committed on the 10th February 2008. Prosecution called four witnesses to prove the charge against the accused and closed its case.
   
4. Having been satisfied that the prosecution has made out a case sufficiently requires the accused to call evidence, the defence was ordered to call witnesses. Thus the accused and 4 other witnesses gave evidence for the defence on the same date.
   
5. The complainant is a 44 year old woman at the time she gave evidence. It appeared that the alleged incident is said to have been taken place amidst a quarrel between the accused's party and the complainant's party. The particular incident had been sparked by a long standing animosity between the two parties regarding a driveway.
   
6. Both parties are closely related and the accused is the younger brother of the complainant's husband. The clash has started around eight in the morning of the date of the incident and the alleged offence is said to have been committed during the said clash.
   
7. The accused was unrepresented during the hearing and he appeared in person while the prosecution was conducted by a prosecuting officer who is a corporal of the Lautoka Police.
   

Prosecution case

8. The Prosecution first called Roshani Devi, the complainant and she said that on the day of the incident she was at the front porch sweeping the floor. She said the van belonging to Anirudh Singh, a brother in law of the complainant was parked inside her compound. The accused had told him to remove the vehicle in an abusive language. A fight had started and when she intervened accused had taken out his penis and had showed it to her. The complainant said that while doing that the accused had told her "sit on this". Further she said in evidence that the accused had told her "this is what you want". She said that she was embarrassed. Also she went on to say that she was assaulted by the accused and she underwent a medical examination.
   

Defence Case

9. The accused said while giving evidence that the complainant and the accused use the same driveway and on the day of the incident he was going to buy bread for his children. Anirudh Singh's van had been parked on the driveway. The accused said that the complainant and her husband too were standing there and the accused had asked Anirudh to remove the van from there. Anirudh had refused to move the vehicle and he had used abusive language. After waiting for another five minutes when he had told Anirudh to move the van Anirudh had come and punched his face once. Afterwards Anirudh had opened the door of his vehicle and dragged him on to the ground. Then he had been assaulted by Anirudh. The accused further went on to say that after the assault the vehicle had been moved out side and the accused had got on to his vehicle and had gone to the police. He had undergone a medical examination and Anirudh had been later on charged for assaulting him.
   
10. The accused said that around 1 pm Roshani Devi, the complainant had come to the police station complaining that the accused had shown her his private parts. The accused's position was that the complainant had lodged a false complaint to incriminate him since her husband was charged for assaulting the accused.
    

Analysis

11. Section 154(4) of the Penal Code reads as follows;
    

"Whoever, intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl, or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty, is guilty of a misdemeanour, and is liable to imprisonment for one year."

12. Accordingly the prosecution has to prove beyond reasonable doubt the following elements apart from the date, place and the identity of the parties.
    
    1. The accused intended to insult the modesty of the complainant.
       
    2. The accused exhibited his penis to the complainant.
       
    100. The complainant did see the object which was shown by the accused.
         

There was no dispute with regard to the date, place of the alleged act and the identity of the parties involved in the alleged act.

13. At this juncture it is very much pertinent to ascertain whether the prosecution proved those elements beyond reasonable doubt. Accusations of this nature are very easy to make especially in the backdrop of heated up and longstanding animosities between parties. Although the courts have decided time and again that allegations relating to sexual offences need not be necessarily corroborated, it is of utmost importance to be cautious in coming in to conclusions in cases of this nature. Thus it is very crucial to lead solid, impressive and corroborative evidence by the prosecution to rule out any possibility of a reasonable doubt being created as to whether a particular charge is based on a fabricated or a vexatious allegation.
    
14. In this case I have examined the evidence adduced by both parties with so much of caution. Although the likelihood is so high to put forward baseless accusations of this nature, the court is very much mindful of the fact that there is an equal or more likelihood to commit offences of this nature amidst or consequent to a dispute between two rival parties. Essentially the exercise of analysing the evidence in a case of this nature would be a tread on eggs.
    
15. In this case the accused was not defended by a learned defence counsel who has expertise, knowledge and versatility in legal arguments. Yet the accused in this case with his little knowledge or no knowledge of legal technicalities was able to highlight an element which runs in to the crux of the matter. The accused pointed out that there was an unreasonable delay in making the complaint to the police of the alleged offence.
    
16. While vehemently denying the allegation the accused put to the prosecution witnesses, the question about delay in making the complaint to the police. When the prosecution witness Anirudh Singh was cross examined by the accused the following evidence was recorded by the court.
    

Accused: If I showed her at 8.00am why did they complained at 1 pm?
Witness: I don't know what time they reported.

17. The prosecution did not lead any evidence to rebut the negative inference created by the accused regarding the delay in complaining about the alleged act to the police. Nor did they lead evidence of any police witnesses who recorded the complaint or who did the investigations. Further the accused gave evidence saying that around 5 minutes to 1 pm the complainant came to the police station regarding the alleged act. The prosecution at least during the cross examination did not suggest to the accused that there was no delay in complaining the matter to the police. Further, to buttress the position of the accused he went on to suggest to the complainant during the cross examination that the complainant made false allegations because of the fight he had with her husband. In the circumstances I am convinced that the complaint regarding the alleged act has been lodged very much after the dispute arose between the two parties.
    
18. Credibility of a witness does not necessarily depend on mere reiteration of a particular incident. On the other hand what is expected from an independent witness is a true narration of the incident which took place. A witness should not suppress any material which he may sometimes think to be of detrimental to the prosecution case. But if a witness seems to be deliberately attempting to suppress a part of the details of an incident, invariably the court cannot find that witness to be a credible and an independent witness.
    
19. The complainant in this case has admitted that there was a fight between the accused and her husband. It was further transpired that the complainant's husband was charged for assaulting the accused on that day. Also it was revealed that it was the accused who had gone first to the police station and the complainant has admitted that the police came following the complaint of the accused. Yet it is surprising to note that the other witnesses called by the prosecution have denied such an assault on the accused. All the prosecution witnesses appear to be bystanders when the alleged offence is said to have been committed. It was revealed that all of them had been present from the beginning to the end of the alleged incident. But whenever the accused cross examined them regarding the assault on him none of them were independent enough to narrate the whole incident that took place on the 10th February 2008. But they all remembered the colour of the trouser and the underpants of the accused.
    
20. Shardha Mani, another witness of the prosecution who is a neighbour of the complainant said while giving evidence that when she came to the complainant's gate to ask about a recipe of a cake, she saw that the accused was swearing words with his penis out of the grey underwear. She said the accused was 3 meters away from her. In cross examination the accused asked from her "If you are saying that I showed my penis can you say it is circumcised or not?" . Then in reply to that she said; " I could not see whether it was circumcised or not." However when the accused asked soon after that " If you were 3-5 meters away why didn't you see?" the witness said in contrary to her previous answer that " I saw, it was circumcised".
    
21. From the same witness the accused once asked as to why the police took the complainant's husband away. In reply to that she said "Police took him for medical examination." But it was not revealed that there had been a case filed by the police for inflicting injuries to the complainant's husband. It also appeared that she has given evidence in an exaggerated manner. It should be noted that for the contradictory and exaggerated evidence given by Shardha Mani and for the demeanour of her, she cannot be considered as a credible and an independent witness.
    
22. Anirudh Singh, another prosecution witness said while giving evidence that the complainant's husband fell down unconsciously after being assaulted by the accused. And he said that then he took him to a hospital. However in cross examination when the accused asked "how did then I underwent a medical examination?" the witness said "I reversed the van and left. I don't know whether he was injured". It was evident that this witness too has given contradictory evidence although the contradictions are not directly related the specific alleged act of the accused. But it should be noted that the particular alleged act is said to have been committed during the same transaction and therefore material contradictions have to be considered by this court in ascertaining the credibility of witnesses.
    
23. Prosecution witness Mahendran Nair said in evidence that he was cutting timber at the complainant's house when the incident took place. He said after the complainant's husband was assaulted, the police came and then he stopped work. But during the cross examination the witness said that he was at the porch when the alleged incident took place. In a case of this nature if a witness says that he saw a particular incident it is relevant to inquire whether he was positioned in a place so that he could see the incident well. But it was not clear from the evidence of this witness where he was actually positioned when the alleged offence was committed and it was also not clear whether he was at the porch or elsewhere cutting timber. In this case the complainant gave evidence saying that while the accused was showing his genitals to her that he uttered the words "sit on this. This is what you want". However in contrary to that Mahendran Nair said that the accused had said "come and see what I got" when he pulled his shorts down.
    
24. Thus it is clearly discernible that there are plenty of contradictions in the evidence of the prosecution witnesses pertaining to some material aspects of the case which go to the roots of the case. Although some of these discrepancies may appear very minor they have an impact on the credibility of the prosecution witnesses. Unequivocally such contradictions weaken the credibility of witnesses in a criminal case of this nature.
    
25. Undoubtedly it is the primary duty of the prosecution to prove its case beyond reasonable doubt. The prosecution should at all times be mindful of the elements that have to be proved as far as a particular charge is concerned. It was observed in this case that evidence was led without giving enough thought about the elements of the offence. Unless all the elements, a charge is comprised of are addressed and proved the prosecution cannot expect to secure a conviction based on vague and irrelevant evidence adduced in a case.
    
26. On the other hand the accused is not expected to prove his innocence. He can even remain silent as far as the charges brought against him are concerned. The maximum an accused is expected to do is just to create a mere doubt in the prosecution case.
    
27. In this case it should be noted that the accused has maintained consistency of his defence right through out the trial. From the time the accused cross examined the complainant to the last defence witness called to give evidence, the accused denied the allegation and it was re iterated that it was a false allegation sprung as a result of a different dispute. The doubt created by the defence regarding this issue was never defeated by the prosecution.
    
28. Having considered the evidence adduced by the prosecution as well as the defence I am of the view that the accused was successful in creating a reasonable doubt as far as the prosecution case is concerned. Thus I decide that the prosecution has failed to prove the charge against the accused beyond reasonable doubt.
    
29. In these circumstances I decide to acquit the accused from the charge of indecent exposure contrary to section 154(4) of the Penal C ode Cap 17.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
21.01.2010