IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case : 86/2012

STATE

V

SHIV KUMAR

For Prosecution : Sgt. Lenaitasi
For Accused : Mr. Reddy 

Judgment

[1]	The accused was initially charged with two counts of Indecent Assault contrary to section 212 (1) of the Crimes Decree No.44 of 2009. The charge filed in this Court on 22 March 2012 reads as follows:

First Count 

Statement of Offence []

INDECENT ASSAULT – Contrary to Section 212 (1) (a) of the Crimes Decree No 44 of 2009. 

Particulars of Offence [a]

Shiu Kumar on the 18th day of March 2012 at Veiwawa, Nakaulevu , Navua in the Central Division , Indecently assaulted Arti Singh. 

 Second Count 

Statement of Offence []

INDECENT ASSAULT – Contrary to Section 212 (1) (a) of the Crimes Decree No 44 of 2009. 

Particulars of Offence [b]
Shiu Kumar on the 18th day of March 2012 at Veiwawa, Nakaulevu , Navua in the Central Division , Indecently assaulted Asha Singh. 

[2]	The accused pleaded not guilty for both counts and this was fixed for hearing on 21 Nov 2012. On the hearing date the prosecution withdrew the 2nd count under section 169(2) (b) (2) of the Criminal Procedure Decree and the accused was discharged from that. The hearing proceeded with regard to first count only. 

[3] The prosecution called 04 witnesses (02 civil witnesses and 02 police officers) and the accused opted to remain silent during the hearing. Both parties filed closing submissions which greatly assisted this Court to make this Judgment. 

SUMMARAY OF EVIDENCE

[4] The PW1, the victim in this case said on 18 March 2012 she was in her home listening to the radio. Her mom was washing the cloths. The accused came inside the house and held her shoulder and buttock. The PW1 told him not to touch her and then the accused left. The PW1 told the incident to her mom and later reported the matter to the police. In cross examination the PW1 again stated the accused touched her shoulder and back. 

[5] The PW2, PC Sharon said on 20 March 2012 she recorded the statements of the victim in English. Mother was also present and she asked from the mother and she put the questions to the victim. In cross examination she said she could not write properly in Hindi and that was the reason for recording the PW1’s statement in English. 

[6] The PW3 was Parbha Wati the mother of the victim. She was washing the cloths and saw the accused going inside the house. Later her daughter told her about the incident. In cross examination she said she gave a statement to the police and her son reported the incident to police on Monday. 

[7] PW2 was again recalled regarding the recording of the PW3’s statement. PW2 stated that she recorded everything PW3 said on that day and it was explained back to her. 

[8] The PW4 was DC Ronald who recorded the caution interview of the accused. The PW4 said the accused was asked in Hindi and recorded the statement in English. The statement was marked as EX-01. 

[9] The PW5 was Dc Seru who charged the accused and the charge statement was marked as EX-02. 

[10] The prosecution closed their case after that and the learned defence counsel submitted that there was no case made out against the accused under section 178 of the CPD. 

[11] By ruling dated 29 Jan 2013 this Court held that there was a case made out against the accused and accordingly gave his rights under section 179 of the Criminal Procedure Decree.

[12] The learned defence counsel informed this Court that the accused did not want to give evidence nor wanted to call any other witnesses and also closed their case. 

 [13] The learned defence counsel throughout this hearing as well as in his closing submission took following grounds as his defence. 

[a] The charge is defective 

[b] The State has not proved the case beyond reasonable doubt. 

[14] I will address these two ground one by one in my judgments in line with the evidence presented in this case as well as relevant law provisions. 

DEFECTIVE CHRGE

[15] According to the defence’s closing submission charge was defective for following reasons.

[a] The accused was charged under wrong sub section in the Crimes Decree 
[b] The particulars of offence in the charge sheet are not adequate.
Therefore the charge is defective and the defence submitted that the accused should be acquitted from this offence.

[16] The accused was initially charged under section 212 (1) (a) of the Crimes Decree. Learned Counsel for the defence correctly pointed out during the prosecution’s case that there was no sub section like that in the Crimes Decree and the prosecution before the close of their case amended the charge under section 182(1) of the CPD deleting sub section (a). 

Section 182(1) states :- 

Where, at any stage of the trial before the close of the case for the prosecution, it appears to the court that the charge is defective (either in substance or in form), the court may make such order for the alteration of the charge, either by — 

(a) amendment of the charge; or 
(b) by the substitution or addition of a new charge — 
as the court thinks necessary to meet the circumstances of the case 

[17] The prosecution amended the charge deleting subsection (a) from the charge sheet. The defence did not object to this amendment at that time. Therefore they can’t take this objection in their submission now. 

[18] Also the accused was charged with two counts of Indecent Assault and the relevant section is section 212(1) of the Crimes Decree. I do not think that the accused was misled by the above mistake in the charge nor prejudiced on his defence since he was represented by a counsel throughout this case. 

[19] Second ground mentioned with regard to the charge is that the particulars of the offence are not sufficient and therefore the charge is defective. I will reproduce the amended charge : 

Statement of Offence []

INDECENT ASSAULT – Contrary to Section 212 (1) of the Crimes Decree No 44 of 2009. 

Particulars of Offence [a]
Shiu Kumar on the 18th day of March 2012 at Veiwawa, Nakaulevu , Navua in the Central Division , unlawfully Indecently assaulted Arti Singh. 

[20] Section 61(4) of the Criminal Procedure Decree states that “After the statement of the offence, particulars of the offence shall be set out in ordinary language, and the use of technical terms shall not be necessary.”

[21] Defence contention is that merely stating in the particulars of the offence that the accused indecently assaulted the victim is not enough and it needs to specify what the accused actually did on that day. 

[22] The prosecution were given the chance to reply to these submission and they submitted that charge is not defective. I believe following cases would be relevant to this objection. 

[23] In Khan V State [2008] FJHC the appellant was charged with Indecent Assault on female under section 154(1) of the Penal Code. The court held :

“The charge in the present case in my view complied with the CPC. The charge commenced with a statement of offence, identified the offence of indecent assault and made reference to section 154 (1) of the Penal Code. The particulars of offence specified that the appellant ‘on the 5th day of May 2007, at Kulukulu, Sigatoka in the Western Division had unlawfully and indecently assaulted Sainimere Kilitate’. There was absolutely no doubt that the complainant Sainimere Kilitate was a female and the appellant knew that his accuser was a female. For these reasons, I hold the charge was not defective.’” 

[24] In that case defect charge was taken on the basis that particular of offence did not specify whether it was committed against a woman or girl. The court rejected the claim and was satisfied with the particulars of offence which was very similar to particulars in this charge. 

[25] His Lordship Pathik J in Vilikona Bukai v State [1999] FJHC; HAA 040 of 1999 made the following observation:

‘The purpose of a charge is to tell an accused person as precisely and concisely as possible the particulars of the offences with which he is charged and sections 119 and 122 of the Criminal Procedure Code give clear and explicit directions on how, inter alia, a charge should be framed.

A charge must contain those particulars which give the accused an idea of the case which he has to meet. It may not contain elaborate details but there should be no doubt as what is the case against him and what allegations he has to meet.

[26] In Kaukimoce v State [2009] FJHC 22; HAA0026.2008 one of the grounds taken by the appellant was again the defective charge. The particular of the offence in the charge stated that “SAKIUSA TABUANITOGA KAUKIMOCE on the 31st January 2007 at Labasa in the Northern Division, unlawfully and indecently assaulted Dilitia Boginivalu”. 

[27] Mataitoga J observed in that case that “It is clear from the wording of subsection (1) that a charge to be preferred under that provision of the Penal Code, it must have the following, as minimum, to avoid the claim of a defective charge:

i) A person [the accused]
ii) unlawfully and indecently assaults
iii) A woman or girl

[28] I believe the above observation is relevant to this case also. Difference between section 154(1) of the Penal Code and 212(1) of the Crimes Decree is that section 154(1) dealt with the Indecent Assault against the female and present section dealt with Indecent Assault against a person. 

[29] Based on above mentioned cases I accept that there is no defect in the particulars of the offence in the charge and reject the first ground of defence. 

PROSECTION HAS NOT PROVED THE CASE BEYOND RESONBALE DOUBT 

[30] The accused was charged with the offence of indecent Assault contrary to section 212(1) of the Crimes Decree. Section 212(1) of the Crimes states:- 

"Person commits a summary offence if he or she unlawfully and indecently assaults any other person."

[31] In State V Gounder [2009] FJMC14 the court held that there are 3 elements that must be met before a person can be convicted for an offence of Indecent Assault :- 

[a] The accused must be positively identified
[b] That the accused did the act
{c] The assault was unlawful and indecent and that it is morally wrong 

[32] Section 57(1) of the Crimes Decree state :- 

'The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.'

[33] Section 58(1) of the Crimes Decree has imposed the prosecution with proving the case beyond reasonable doubt. 

[34] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship 

Justice Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused." 

[35] In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.' 

[36]	Now I will consider the evidence presented by the prosecution's witnesses. The main witness in this case was PW1, the victim in this case. She said on that day she was listening to the radio when the accused came and held her front and back. PW1 showed her buttock as the place the accused touched whilst giving evidence in the witness box. She was cross examined lengthily by the learned counsel for the defence and maintained the same position in that too. 

[37] This Court is satisfied about PW1's evidence as well as her demeanour in the witness box. Even though she is a bit of a mentally weak person she managed to narrate what happened on that day clearly and managed to withstand the lengthy cross examination by the defence. 

[38] PW3, mother of the victim repeated the same thing. I agree with the defence submission that her evidence is more of a hearsay and can't be considered as corroborating PW1's evidence.

[39] But PW3's evidence can be taken to show the reaction of the PW1to the alleged incident. According to PW3, she saw the accused standing near her door and about half an hour later PW1 told about the alleged incident to her which enhance PW1's credibility. 

[40] I am also mindful about the section 129 of the Criminal Procedure Decree which states : - 'Where any person is tried for an offence of a sexual nature, no corroboration of the complainant's evidence shall be necessary for that person to be convicted; and in any such case the judge or magistrate shall not be required to give any warning to the assessors relating to the absence of corroboration.' 

[41] In this case as I noted above I am satisfied with PW1's evidence and believe she is telling the truth in this Court. Therefore even without any other eye witnesses I am prepared to accept her evidence.

[42] The learned counsel also submitted that the PW1 whilst giving evidence stated that she did not feel anything from that incident. That would not be relevant to this offence. Even if that is so she also told to the accused she did not like what the accused was doing to her. 

[43] Another ground mentioned by the defence in their closing submission is that PW1 never uttered buttocks in her evidence. In her evidence in chief she said the accused touched her front and back and showed her buttock. Even though she did not utter the word she showed that place to the Court which I have noted in my evidence.

[44] Whilst giving evidence in the witness box a witness can make gestures as well and that can be considered as evidence too in a hearing. Also PW1 is a mentally weak person and she can't be expected to give evidence like a normal person elaborating fully what happened on that day. 

[45] Even if I accepted the defence argument that the PW1 mentioned the accused only touched her front and back still I believe that would be enough to constitute this offence. PW1 is a grown up girl and the accused is just a neighbour with no relationship between them. He has no right to touch a grown up girl like in that manner. 

[46] The defence also mentioned about recording PW1 and PW3 statement by PW2. PW2 stated that she asked questions from mother whilst recording PW1 statement and she put them to PW1. PW1 is a mentally weak person and it would have been difficult her to narrate the incident to the police without her mother. I do not see any wrong in the way the statement was recorded by the PW2.

[47] According to PW2 she also asked questions in Hindi and recorded statements in English. It would have been better if the statements were recorded in Hindi. But I do not think there was any prejudice caused to the accused because of that. 

[48] The accused statement was also recorded in that manner. Again I have to note it would have been appropriate if that was done in Hindi. But there was no confession in the statement and no harm was caused to the defence. 

[49] I have considered all the evidences presented in this case and satisfied that the prosecution has proved beyond reasonable doubt that the accused committed this offence against Arthi Singh on 18 March 2012. 

[50] Therefore I find the accused guilty for the offence of Indecent Assault contrary to section 212(1) of the Crimes Decree and convict him accordingly. 

 [51]	28 days to appeal

16 April 2013

H.S.P.Somaratne
Resident Magistrate