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State v Kumar [2014] FJMC 165; Criminal Case 335.2012 (27 August 2014)

IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.335/2012

STATE

VS

AUGUSTINE RAJ KUMAR

Sgt: Jitand for prosecution
The accused appeared in person

JUDGMENT

[1] The hearing was done on 30th May 2014 on 2 counts of indecent assault; accused gave sworn evidence. The judgment is for today.

[2] The accused is charged as follows:-

First Count

ANNOYING ANY PERSON: Contrary to Section 213(1)(a) of the Crimes Decree No. 44 of 2009.

AUGUSINE RAJ KUMAR between 25/1/13 to 24/2/13 at Nasinu in the Central Division intending to insult the modesty of Sweta Sweetie intruded upon her privacy by touching her thighs from on top of her clothes.

COUNT TWO

SEXUAL ASSAULT: Contrary to Section 210(1)(b)(i) of the Crimes Decree No. 44 of 2009.

AUGUSINE RAJ KUMAR between 25/1/13 to 24/2/13 at Nasinu in the Central Division unlawfully and indecently procured Sanjeet Kumar to commit an act of gross indecency by showing him his penis and telling him to suck it.

[3] To prove this charges prosecution called following witness;

PW1- SWETA SWEETIE

PW2- SANJEET KUMAR

PW3- KARISHMA

PW4-SWARAN LATA

[4] PW1- SWETA SWEETIE; said the accused is her uncle and the accused has touched her thighs at night when they sleeping in same room with the accused and his family members. She further said it was the only time this happen to her and she didn't see accused since it was dark and all lights was switch off. But she said only the accused was wearing a bangle and she touched it when she throwing the hand of the culprit. She admits that the accuseds spouse was sleeping next to him in the same mattress with her baby. Further she said she didn't scream coz she felt afraid. She identified the accused at open court.

[5] At cross examination the accused said that he doesn't have question to ask.

[6] PW2- SANJEET KUMAR - said the accused is his uncle and the accused when he was going to have bath the accused has entered to same bath room and pushed his head towards the accuseds penis and asked and forced to drink it. He said the spouse of the accused and others of the family was at home but since the accused closed the door no one knew what was happening inside the bath room. He further said it was day time and the only time this happen to him and he didn't say the incident until their mother advised them on wrong touching by the others. He identified the accused at open court.

[7] At cross examination the accused said that he doesn't have question to ask.

[8] PW3- KARISHMA - she is the Owner of the house relevant to this matter. She stated even the accused known to her she can't comment on what happened at the accused place.

[9] PW4-SWARAN LATA- the mother of the PW-1 and PW-2 gave evidence and said that she came to court to say what the accused has done to her two children. She said she was told that the accused has touched her daughter's thighs and her son was forced to suck the accuseds penis. she said that they were temporary staying at the accused place at the time of alleged incidents.

[10] The accused was grant opportunity to cross examine and at the cross examination the accused said that he doesn't have questions to ask.

[11]After the prosecution close their case since there was elements of the alleged offences this court ruled there is a case to answer. The accused made statement under oath and cross examined by prosecution.

[12] The accused denied the entire allegation and said that the witnesses are lying. He could not explain or question the credibility of the witnesses.

[13] Even though the accused called his spouse ROSHINI KANTH to give evidence BUT she refused to give evidence as she didn't see anything.

[14] now I consider burden of proof and law on this offence. In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[15] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat 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 counsels 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 rease doubt about the the guilt of ccu accused."

[16] As Lord Devlin mentioned evidentiary burden of proof in the Privy Council (which was the final appellate court foicialems of the Britisritish colonies) in Jayasena v. The The Queen ( 1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[17] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

[18] The offence of ANNOYING ANY PERSONS Has described in Section 213(1) (a)/(b) of the Crimes Decree 2009. In which it has mentioned as follows;

"(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) 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 the other person; or

(b) Intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year"

[19]Section 210(1)[b] of the Crimes Decree No 44 Of 2009 states as follows:-

"An person commits an indictable offence (Which is triable summarily) if he or she-

Procures another person, without the persons consent-

(i) to commits an act of gross indecency;or

(ii) to witness an act of gross indecency by the person or any other person.

Punishment -imprisonment for 10 years"

[20] Elements of the charge of indecent assault are:

(1) Any person
(2) Procures another
(3) without consent
(4) to commits an act of gross indecency or to witness an act of gross indecency by the person or any other person

Analysis of the evidence

[21] In line with the above guiding principles, I now evaluate the evidence adduced before me with regard to 1st count on annoying any person contrary to section 213[1](b) of the crimes decree. The PW1 said she was touched by the accused. It was only touching but nothing else. Since the accused was not the only person slept next to and PW-1 has not seen the face of the culprit the benefit of the doubt is given to accused and thus discharged the accused from 1st count of annoying.

[22] Now I consider evidence with regard to 2nd count on sexual assault contrary to section 210[1][b](i) of crimes decree 2009.PW2 said the alleged sexual assault happened at a day time inside the bath room. He confirms that the accused forced him to suck his penis. This allegation was not challenged by the accused at the cross examination. Since the PW2 is related to accused and there is no proof of any setup or victimisation this court is not hesitate to accept the evidence of PW2. all the other evidence is corroborating with PW2 evidence and this court found that the accused is guilty on 2nd count of sexual assault contrary to section 210[1][b](i) of crimes decree 2009. I hold the prosecution proved its case beyond reasonable doubt.

[23] Thus, this evidence itself sees that all the elements are patent in this charge. However current law development indicates corroboration is no longer required for sexual offences. (Eliki Mototabua v State HAC0020 of 2002 and State v AV HAC 192 of 2008).

[24]Therefore this court as per section 210[1][b](i) of crimes decree 2009 convict the accused for the 2nd count of sexual assault.

[25] 28 days for appeal.

On 27th August 2014, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate