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State v Deo [2014] FJMC 5; Criminal Case 653.2013 (9 January 2014)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
Criminal Case No: 653 of 2013

State

v

Chandar Deo

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Cpl Viliame (Police Prosecution)
Accused: Present – With Mr V. Singh (Parshottam & Co.)

JUDGMENT

Introduction

The accused is charged as follows:

INDECENTLY ANNOYING A FEMALE: Contrary to Section 213(1)(a) of Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Chandar Deo, between January 2012 5th day of April, 2013 at Suva in the Central Division, with intent to annoy L V, uttered the words "hey lako mai ke" meaning "hey come here" and blinked his eyes intending that such words and gestures which should be heard by the said L V.

The Law and The elements of the offence

Section 213 of the Crimes Decree provides for the offence of Indecently Annoying the Modesty of Females - and it is stated as follows:

"213. — (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."

The Elements of the charge of Indecently Annoying the Modesty of Females are:

(a) intending to insult the modesty of any woman or girl

(b) uttering any word, makes any sound or gesture, or exhibits any object

(c) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl,

(d) intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty.

The Evidences of the Witnesses

The Prosecution called 2 witnesses. PW- 1 – L V, and PW-2 – I A. Both the witnesses are minors and students and to protect their privacy if this case is publicised this Court will use acronyms.

At the close of the prosecution case, this Court ruled a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence. The Caution Interview and Charge Sheet were tendered by consent.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The onus is on the prosecution to prove the charge beyond reasonable doubt.

From the evidence given in Court, this Court notes that the issues for this Court to determine are whether accused said the words as alleged by the complainant and blinked at the complainant and the words and gesture offended the modesty of the complainant. The that are not disputed are the identification and time and date of the alleged offending.

The complainant, L V, is 10 year old, a minor and a school student. She understood the importance of telling the truth when the Court enquired with her on the issue of taking oath. She gave sworn evidence. Her evidence in Court in examination in-chief can be briefly summarised as follows "...always go to bus-stand sit next to newspaper seller. He is always asking me questions and grabbing my bag and purse. Questions he asked me – money inside – he asked for money. I feel scared. He gives me money. I never take it. He grabs my bag strings. He asks me to sit next to him. ... He grabbed my uniform dress on the thigh. When he pulls my dress I get near him. He touches forcefully and puts marks on my body. Parents ask me how I get the marks on my body. Mainly the thigh. Sometimes he blinks. He also grabs my hands. I tell my parents they never listen. I started hiding from him. I told no one else." She identified the accused in Court.

In cross-examination L V, stated "... police interviewed me. Did not tell police of marks on thighs. Showed marks to parents. Marks on left thighs. All happened at bus-stand. At bus-stand at 2pm. School finishes at 2pm. Grabbed thighs sometimes. Cannot recall number times. No-one was watching. Sometimes with friends and sometimes alone. I am standing where he sells papers. On each occasion accused in same place. It was crowded. Do not like crowded places. Father told me stand at particular place at the bus stand. ...." In re-examination she stated " did not want anyone to know I had mark on thighs."

The evidence of I A, (PW-2), a school student, who is 13 years was "at bus stand man who sells newspapers always calls class 5 girl to sit next to him. Always give $1 or 50 cents to her. She did not take the money. He used to wink at her. Sometimes he touches her. He pulls her close to him. He touches her thighs. She was scared. She ran to me and said she was scared. Started last year January until 5th April 2013." She also indentified the accused in Court.

In cross-examination I A stated "she did not take the money.... LV is a friend of mine. Talked about this outside Court today. She told me what happened to her. Saw him touch her. Saw it happen, L V did not tell me. ... he touched her after she did not take the money. Not crowded, students there. People on other side. Did not report to teacher. She said she will tell. ... He only winked at her sometimes. Not forceful touch to leave bruises."

The accused gave sworn evidence as follows "not true I gave money to LV. Give change. Did not touch her uniform. Did not touch her thighs at all. Did not wink at the complainant. When she took paper and left asked her to come take change. She bought paper from me. Those who left asked them to take change. ..."

In cross-examination he stated "I did not talk to her. ... told police about the thread. Did not tell police talked to the girl. Will not lie to save self. Did not wink. Did not hold dress. Did not grab her thigh." In re-examination he stated "no other interaction apart from thread incident. Spoke to her then. Told police of thread incident."

The Court noted from the charge that it is one of indecently annoying a female. Some of the evidence given is also of alleged indecent assault. The accused is not charged with indecent assault. The Court notes from the allegations put to the accused that no allegation was of indecent assault (touching of the thigh).

The Court has noted all the evidence that was given in this Court. The complainant and the 2nd prosecution witness were consistent with regards to the aspects of the charge that needed to be proven. The accused totally denied the offence. The 2nd prosecution witness in cross-examination told the Court that they talked about the case outside on the date of the hearing. Given the age of the complainant and the witness this Court notes certain difficulties and the need to guide them on what will happen in Court. However, they cannot be told what to say or be coached. Witnesses similarly cannot discuss what will be said in Court. One other issue for the court was the evidence given by the Complainant that when the accused grabbed her he left marks on her body. The 2nd prosecution witness told the Court that the touch was not forceful to leave bruises. This evidence of the two prosecution witnesses is contradictory and unreliable.

The issue raised herein by this Court and all the evidence when considered in totality has raised reasonable doubts which are not reconcilable. The doubts so created do not assist the prosecution case.

For the foregoing reasons this Court finds the accused not guilty of indecently annoying the complainant. Accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

9th January 2014