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State v Chand [2015] FJMC 97; Criminal Case 76.2011 (25 August 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 76 of 2011

STATE

v

1. KRISHNEEL CHAND
2. RAJNESH CHAND
3. SAROJ WATI
   

Prosecution : PC Nilesh
First Accused : Ms Devi. S
Second Accused : Mr Fesaitu. M
Third Accused : Ms Dunn. S

Judgment : 25 August 2015

JUDGMENT

1. All the Accused were jointly charged for Abduction of a Young Person contrary to section 285 of the Crimes Decree No. 44 of 2009. The particulars of the offence is that all the accused on the 19th day of October 2010 at Labasa in the Northern Division, unlawfully took Maimun Nisha a young person under 18 years of age, out of the possession and against the will of her mother Kamrul Nisha.
   
2. All the Accused pleaded not guilty to the charge on 27 June 2012. Four hearing dates has been vacated and the case proceeded for hearing on 16 and 17 of March 2015.
   
3. The Prosecution called five witnesses, two police officers and three civilian witnesses. The civilian witnesses are the victim, victim's mother, and the victim's younger sister. Each defence counsel called the respective accused they each represent to gave evidence for their respective case.
   
4. Section 285 of the Crimes Decree state; –
   

"Any person commits a summary of offence if he or she unlawfully takes or causes to be taken any young person, being under the age of 18 years, out of the possession and against the will of his or her father or mother, or of any other person having the lawful care or charge of the young person."

5. The standard of proof in criminal cases is "beyond reasonable doubt" and the burden is always on the prosecution. In this offence, the prosecution need to prove the following elements;-
   
   1. The victim is under 18 years;
   2. Accused took the victim unlawfully; and
   100. Out of the possession and against the will of her mother.
        
6. The victim's birth certificate was not tendered as evidence by the prosecution. In this offence, it is vital for the prosecution case to tender the victim's birth certificate. However, the Victim in her evidence confirmed that she was born on 4 April 1994, and she was in form 3 at All Saints Secondary School at the time of the offence. That means the victim was 16 years old at the time of the incident. This evidence was not challenged or rebutted and I am satisfied that the victim is under the age of 18 years at the time of the offence.
   
7. According to the victim on the date of the incident, she was walking to school. She was in form three at All Saint Secondary School. She went pass Naidu's shop and at Vulovi junction, she met all the three accused coming in a blue van. The First Accused disputed that he was in the van on that morning. The victim, her sister, and her mother in their evidence on oath confirmed that the first accused was in the van when they pick the victim. However, when they were cross examined by the defence counsel they all admit that in their statement to the police they did not state that the first accused was in the van. According to the Victim, when she gave her statement to the police on the same date of the incident the events of the incident was not fresh on her mind. When the victim's sister was asked by the defence counsel as which version of the story is correct, she confirmed the version given to the police is correct. The victim's mother state that she told the police and the police did not record. However, she confirmed that her statement was read over to her where she agrees with the contents. All their statements were recorded on the date of the incident.
   
8. The Victim state that she get into the van at the Vulovi junction and they drove towards All Saints Secondary School and they never stop the van at the school and drove towards Vunika. She confirmed that All Saint Secondary School is just opposite Vulovi junction and is on the other side of the road. The Victim states that the accused told her to get into the van. I find it hard to believe on why the victim got into the van when her school is just across the road. The Accused evidence is that it was the victim who stopped the van as she was sick and want to go home. I accept the accused evidence and reject the victim's evidence as she is not a credible witness.
   
9. The Victim said that they drove the van to Vunika and when her mother called the third accused they turn around and drop her at the zebra crossing in town. Both the victim's sister and mother in their evidence on oath confirmed that they saw the van went to Vunika and Soasoa side and the victim was in the van. However, in the victim's statement to police she state that when she get into the van they drove to the third accused's house where first and second accused are also residing. She also state that when she saw her mother left for town she went to town by taxi. Nothing in her statement to state that they drop her at the zebra crossing in town. Again the victim is contradicting herself where she said the events on that day was not fresh on her mind when her statement was recorded by the police but after five years the events are now clear on her mind. It was the accused's evidence that they drove straight to the victim's home but she did not want to get off as she is afraid of her grandfather who is residing with them. I again reject the victim's evidence as she is not a credible witness.
   
10. The Victim on oath, deny went into the third accused house, but later state that the first accused force her to come into his place. The defence's case is that the victim did not want to get off at her place and because they were in a hurry they drove to the third accused's home and the third accused call the victim's mother on her cell phone. The Victim also state that they travel in a single seat van where all the accused and her were sitting on that day. I find it hard to accept this piece of prosecution evidence. Again I reject the victim's evidence as she was not a credible witness.
    
11. It is clear from the evidence of the prosecution that all civilian witnesses were giving contradictory evidence. I find that they are not reliable witnesses and I find that they are not credible witnesses. Accordingly, I reject their evidence.
    
12. The Victim's mother in her evidence confirmed that they were not in good relationship with the Accused. The defence case is that because they were not in good terms with the victim's family, the victim falsely makes up the allegation. The contradicting evidence of the prosecution civilian witnesses clearly shows the false allegation planned by the victim's family.
    
13. In my judgment, I find the prosecution witnesses are not credible witnesses and I will reject their evidence as it is not safe for this court to convict on their unreliable and contradictory evidence.
    
14. Accordingly, I find that the prosecution has failed to prove its case beyond reasonable doubt. I find all the accused not guilty as charged and I acquit all the accused accordingly.
    

28 days to appeal.

..........................................
Cama M. Tuberi
RESIDENT MAGISTRATE