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State v Mudalliar [2021] FJMC 29; Nadi Criminal Case 575 of 2011 (18 November 2021)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Nadi Criminal Case No: 575 of 2011

BETWEEN : THE STATE

AND

1) RITESH MUDALLIAR
2) KRISHNA GOUNDAR

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Judgement : 18^th November, 2021

Corporal 4609 Bola Nadavo for the Prosecution

Mr. Mudunivalu for Accused 1

Accused 2 not present and unrepresented

JUDGEMENT

1. RITESH MUDALLIAR AND KRISHNA GOUNDAR, both accused in this case have been charged for one Count of Attempt to Rape contrary to Section 208 of the Crimes Decree No. 44 of 2009 and the 2^nd accused Krishna Goundar is charged for one count of Common Assault contrary to Section 274 of the Crimes Decree No. 44 of 2009.
   
2. Particulars of the offence states:

Count 1 – Ritesh Mudalliar and Krishna Goundar, on the 06^th day of July 2011, at Nadi in the Western, attempted to have carnal knowledge of Kelerayani Valu, without her consent.

Count 2 – Krishna Goundar, on the 06^th of July, 2011, at Nadi in the Western Division, unlawfully assaulted Merelesita Namata.

BACKGROUND

3.1 It was revealed upon perusal of the case record that the alleged offences have been committed in the year 2011 and both the accused have pleaded not guilty to both charges on the 26^th March 2016.
3.2 Since the 2^nd Accused has been absconding court for a long time, court has decided on the 3^rd November 2017 to hold the trial in absentia against him.
3.3 The Trial commenced before me on the 6^th August 2019 and was concluded on the 15^th December 2020.
3.4 At the trial the prosecution has called the following witnesses and tendered to court documents marked from Pr. Ex 1 to Pr. Ex. 3, as evidence.

1. Kelerayani Valu
2. Merelisita Namata

3.5 Thereafter when the prosecution closed its case, the 1^st accused opted to give evidence, but he did not wish to call any other witnesses to give evidence on his behalf.
3.6 Subsequently, the trial concluded and both parties have informed court that they would only rely upon the evidence placed before court at the trial and do not wish to make any closing submissions.

THE LAW

4.1 Both the accused are charged in this case for Attempt to Rape contrary to Section 208 of the Crimes Decree No. 44 of 2009 and only the 2^nd accused Krishna Goundar is charged for Common Assault contrary to Section 274 of the Crimes Decree No. 44 of 2009.

4.2 Section 208 of the Crimes Decree provides that:

Any person who attempts to commit a rape commits an indictable offence (which is triable summarily).

Penalty — Imprisonment for 10 years.

4.3 Section 207(2) of the Crimes Decree has defined the offence Rape as:

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

4.4 Section 274 of the Crimes Decree provides that:

1) A person commits a summary offence if he or she unlawfully assaults another person.

Penalty — Imprisonment for 1 year.

(2) The offence under sub-section (1) is to be applied if the assault is not committed in circumstances for which a more serious offence is provided for in this Act.

4.4 Section 57of the Crimes Act states that;

1. The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
2. The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
   

4.5 Section 58(1) states that “A legal burden of proof on the prosecution must be discharged beyond reasonable doubt”.

4.6 Accordingly, the elements that need to be proven by the prosecution in this case to prove the charges of Attempt to Rape and Common Assault are that;

1. On the 6^th July 2011 both the accused in this case have attempted to commit rape on Kelerayani Valu (PW1) without her consent
2. On the same day Krishna Goundar, the 2^nd accused has unlawfully assaulted Merelesita Namata (PW2).
   

EVALUATION OF EVIDENCE

5. Admissions

None of the parties have disputed the following facts:

1. The date (6^th July 2011) of the alleged offences on the charge sheet.
2. The Accused and the two witnesses (PW1 & PW2) have met on the said date.
   

Prosecution’s Evidence

6.1 I now consider the evidence of the Prosecution to see whether the allegations against the accused have been proven beyond reasonable doubt.
6.2 PW1 Kelerayani Valu, has stated to court about how she went to Nadi police station with her sister Merelisita Namata on the 6^th July 2011 to lodge a complaint about some undelivered goods that had been sent for her from abroad,
6.3 They both had accompanied the police officers when they went to Narewa village to inquire about their claim and had returned to Nadi with the police officers who had dropped them off near a Bottle shop in the town. .
6.4 According to her evidence at the Examination-in-chief, while they were waiting for a vehicle to go home in Saunaka village, a van driven by an Itaukei man had stooped near them and being given the assurance by the driver that they could go to Saunaka in it, the witness with her sister has gotten into the van. When the girls entered the van they have seen two Indo-Fijian boys (the accused in this case) seated inside. Those boys had 3 bottles of beer with them.
6.5 Although the driver had promised to take them to Saunaka village, instead of travelling along the Queens Highway the van had turned towards Nawakai at the Nawakai junction. When the witness inquired why the van turned into Nawakai road, the driver had informed her that the van would go around and come back to Queens Highway near the McDonalds.
6.6 However, the van had stopped shortly and the driver had told the two girls to get off the vehicle with the two Indo-Fijian boys. The driver had told them to join the boys to share the bottles of beer they had.
6.7 According to her evidence, the witness and her sister seemed to have joined the boys willingly in sharing the beer with them.
6.8 After finishing one bottle of beer the witness had stood up to leave and had started walking towards the road when the 1^st accused had held her hand. According to the witness she had said “Wait, what do you want?” and had pushed the accused away when he had started punching her.
6.9 However, the witness has changed her stand instantaneously and stated that the 2^nd accused had punched her while the 1^st accused was holding her. She continued explaining to court that the 1^st accused had told her previously about having feelings for her and that he wanted to have sex with her. He had pulled her t-shirt off after the 2^nd accused had punched her. When her sister had come towards her and tried to stop him, the 2^nd accused had run towards her.
6.10 According to her, when PW2 had started calling for help some people residing in Nawakai area had come to help the girls and then the matter had been reported to police.
6.11 This witness has further stated that she had been examined by a doctor. However, since the copy of the Medical report provided to the defence was illegible, the same was not tendered to court as evidence through PW1 but the prosecution promised to call the doctor who examined the witness to give evidence later, through whom the Medical report could be tendered to court.
6.12 It is important to note that this witness has admitted while being cross examined that the time when the incident occurred was around 11pm.

• 7.1 PW2 Merelisita Namata is the sister of PW1 who had accompanied her on the 6^th July 2011 to Nadi police station to lodge a report on the missing items.
• 7.2 According to her, while the two girls were waiting for transport near a liquor shop in town to return home, the 1^st accused had told them to get into the vehicle stating that he would be going to McDonalds which is opposite Saunaka Village.
• 7.3 Although PW1 has stated to court that it was the Itaukei driver of the van who they had spoken with, promised them that the van would take them to Saunaka village, PW2’s position was that it was the 1^st accused that coaxed them to get into the van. This can be considered as a contradiction between the two Prosecution’s witnesses on a vital matter.
• 7.4 However, at cross examination, PW2 has changed her position and has stated that it was the driver who answered their questions and told them that they were going to the McDonalds.
• 7.5 According to PW2, all four passengers including the two girls and the two accused have gotten off the van at Nawakai when the driver insisted them to get off. Thereafter, the accused have requested the girls to sit down under a tree in the bush to have a conversation and to share the drinks, which invitation they have accepted.
• 7.6 However, PW2 was persistent in stating that the two girls remained standing while the accused were seated when they shared the beer as well as had a conversation in Hindi and English. However, PW1 has stated under cross examination while explaining their seating arrangements in the bush that she has been sitting beside her sister while the two boys have been sitting opposite them. This is a contradiction within the evidence of the prosecution’s witnesses.
• 7.7 According to PW2, the 1^st accused has touched her sister while they were talking and then she has run away trying to seek for help. When she was running away the 2^nd accused had chased her but he had stopped and returned when she had shouted for help. Her evidence has revealed that the 2^nd accused had only chased PW2 when she ran away and that before doing so he had grabbed the parcel in her hand. Nothing is stated in her examination-in-chief about 2^nd accused assaulting her although one count of Common Assault has been levelled against the 2^nd accused for assaulting PW2. Although PW2 has mentioned the word ‘Assault’ at the end of re-examination in the sentence, “...In the process of me trying to rescue my sister, it was the other person who assaulted me”, according to her explanation in the examination-in-chief what had happened, she had stated that Accused 2 has only grabbed the parcel in her hand and chased after her when she ran away.
• 7.8 Although PW1 has elaborated in detail as to how she was punched, kicked and her T shirt was pulled off by the accused while her sister was standing near, PW2 has stated nothing about PW1 being assaulted in that manner. She only stated that when the 1^st accused ‘hustled’ her sister she has run away to call for help.
• 7.9 Another contradiction PW2 has made within her own evidence is stating that only she and her sister PW1 had gone to Narewa village with the police. At the commencement of the cross examination she denied that there was another sister with them when they went to the police station to lodge a complaint and insisted that it was only Kalerayani (PW1) with her until finally the defence counsel drawn her attention to the statement she had made to the police. When it was pointed out that she had mentioned in her police statement that her two sisters Kalerayani and Naomi had gone with her to Narewa, PW2 admitted the same stating that she could not recall that Naomi too went with them and that after reading the statement she had remembered it. However, nothing has been revealed from the evidence whether Naomi too has been present at the time of the incident or what had happened to her.
• 7.10 It is also very important to note the suggestion made by the defence counsel to this witness that the reason for one of the accused to assault one of the girls was the fact that she had stolen his wallet, because the 1^st accused who gave evidence later has also stated to court that his friend (2^nd Accused) has claimed that one of the girls had taken his money and that was the reason why they chased the girls. The Statement of the 2^nd accused to the police that was tendered to court later by the prosecution marked as Ex. Pr. 1, corroborates this position of the defence as the 2^nd accused too has mentioned therein, about one of the girls running away after taking $20 from him.
• 8.1 After the evidence of PW2 was concluded, the prosecution tendered to court marked as Ex. Pr. 1 the Record of the Caution Interview of the 2^nd Accused against who Trial-in-absentia has been held. Upon the consent of the 1^st Accused, his Statement at the Caution Interview too was tendered to court marked as Ex. Pr. 2 without calling the Interviewing Officer.
• 8.2 Later the Prosecution moved court to tender the Statement of the witness Isei Navugavuga to court as evidence marked as Ex. Pr. 3, without calling the witness and since the Defence had no objections same was admitted.
• 8.3 Although the prosecution has promised earlier to call the doctor who had examined PW1 to give evidence and to tender the Medical Report through him, no such step has been taken.
  
• 9.1 When Prosecution closed its case the 1^st Accused was informed of the available options and he has chosen to give evidence under oath.
• 9.2 He stated to court that on the 6^th July 2011 he had come to Nadi town with his workmate Krishna, after cutting sugar cane. Their plan for that night was to buy some beer from the town and to enjoy them at the 1^st accused’s house in Nawakai. The 2^nd accused would go home the next morning.
• 9.3 Accordingly, the 1^st accused has gone into the liquor shop to buy beer while the 2^nd accused has waited outside. When he returned with the beer he had seen the 2^nd accused talking with two Itaukei girls. Krishna (2^nd accused) has informed him that the two girls were also interested in joining them to share the beer.
• 9.4 According to him, at first he had not liked the idea of the girls joining them to share the beer but after some persuasion by Krishna that the girls could go away after drinking the few beers they had and then they could go home, he had agreed.
• 9.5 Therefore, he had told the driver of the vehicle to drop them off at Nawakai near the Sports Club. All four of them had sat under the Rain tree next to the Sports Club to drink the beer, while this witness sat leaning on the tree. Krishna had sat next to him and the two girls had been sitting next to Krishna.
• 9.6 When the beer had finished the girls had wanted to drink more and they had left. After they left, Krishna had told him that his wallet was missing and both the accused had run after the girls.
• 9.7 The accused narrated to court how the accused chased the girls, how the girls had started to run away when they saw the accused coming, how he grabbed one girl by her shirt, how Krishna had punched the girls and how the residents of a nearby house came out hearing the girls shouting “Rape Rape”.
• 9.8 He insisted that none of the accused had any intentions of raping any of the girls and that they ran after the girls only because they have taken Krishna’s money.
• 9.9 It is interesting to note the suggestion made by the Prosecuting officer to the accused at cross examination that it was Krishna (the 2^nd accused) who had touched PW1 and told her that he wanted rape her, although both the witnesses for prosecution claimed that only the 1^st accused has touched PW1. According to them, the 2^nd accused has only assaulted PW1.
  

10. Analysis of the Evidence and the Law

• 10.1 According to the charges against the accused, the prosecution has a duty to prove beyond reasonable doubt that on the 6^th July 2011 both the accused in this case have attempted to commit rape on Kelerayani Valu (PW1) without her consent and that on the same day Krishna Goundar, the 2^nd accused has unlawfully assaulted Merelesita Namata (PW2).
• 10.2 I will first consider the 2^nd count on the charge sheet which is Common Assault contrary to Section 274 of the Crimes Decree No. 44 of 2009 that is levelled against the 2^nd accused, for easy disposal.
• 10.3 As pointed out earlier in paragraph 7.7, PW2 the girl who is alleged to be assaulted by the 2^nd accused has stated in her evidence that the 2^nd accused had only grabbed the parcel in her hand and chased after her when she ran away. According to PW1 too, it was only PW1 that has been punched and her sister PW2 had run away to call for help when she could not save PW1.
• 10.4 Therefore, this court is unable to be satisfied that the necessary elements, to prove one count of Common Assault that has been levelled against the 2^nd accused in the charge sheet, have been proved.
  
• 11.1 The 1^st count in the charge sheet which is Attempt to Rape Kelerayani Valu (PW1) without her consent has been levelled against both the accused.
• 11.2 It is prudent to now see the elements of the offence of attempted rape. Madam Justice Shameem in David Mukesh Raj v- State FJHC 31; HAA108J.2008 (6 February 2009) has identified the accused’s belief as to the lack of consent of the victim and an attempt to have sexual intercourse as the elements that need to be proved in a case of attempted rape.
• 11.3 Further, her Ladyship has explained that ‘an attempt’ is an act done, with intention to commit an offence which is an overt act committed to put that intention into execution and that ‘an attempted rape’ requires proof of an intent to have sexual intercourse where the victim is not consenting and the perpetrator either knows she is not consenting or does not care whether she consents or not and of an overt act which manifests that intention.
• 11.4 There is a series of cases that can be used as examples to show what sort of actions would prove the intention of the accused to have sexual intercourse.
• 11.5 In Epironi Levukaiciwa & Alifereti Tokona v. State [2002] HAA 087/01S, the act of lying on top of the victim with the intention of having sexual intercourse was held to be an overt act sufficient enough to prove an attempt.
• 11.6 Fatiaki J held in Tiare Bobo v. The State [1999] HAA 0049/99B, that where the accused has undressed himself, the only irresistible conclusion that could be reached was that he intended to have sexual intercourse with the victim who was struggling.
• 11.7 It has been held in Rusiate Bulimaiwai v. The State [2005] HAA 068/05S that the accused’s actions of pulling the complainant up against a wall, pushing up her skirt, touching her genitals, pushing her to the floor, unbuttoning his own trousers and bending down saying "shut your mouth" and "come here", were sufficient to prove an attempted rape.
  
• 12.1 As per the only oral evidence led by the prosecution at the trial, it was only the 1^st accused that had tried to rape PW1 and as such, it is important to first consider whether there are sufficient evidence to prove that the 1^st accused had actually attempted to rape PW1.
• 12.2 The supposed victim in this case, PW1 has only stated in her evidence that the 1st accused had held her hand when she stood up to leave and started walking towards the road. Although she has also mentioned that the 1^st accused had previously told her about having feelings for her and that he wanted to have sex with her, the mere act of the 1^st accused to hold her hand when she had stood up to walk away, would not sufficiently prove his intent to have sexual intercourse with her. The act of holding her hand could have been a mere gesture of requesting her to wait longer.
• 12.3 There are no evidence at all that the 1^st accused had removed his pants or removed the undergarments of PW1 or had tried to lie on top of PW1 which would be overt acts that would prove his intention to have sexual intercourse.
• 12.4 Although PW1 has mentioned that she was punched, kicked and her T shirt was polled off by the 1^st accused and her sister was near her when all that had happened, PW2 has only stated that the 1^st accused has touched her sister while they were talking and then she has run away trying to seek for help.
• 12.5 Although the findings at a medical examination of PW1 could have been quite helpful in arriving at a decision in this case, no medical evidence either orally or in writing has been tendered to court indicating an attempted rape on the PW1.
• 12.6 Further, according to PW1 the 2^nd accused had only punched her when the 1^st accused had been holding her. No evidence indicating an involvement of the 2^nd accused in trying to rape PW1 has been revealed from the evidence of the PW1 or PW2.
• 12.7 No other evidence have been adduced by the prosecution to prove that;
  • Either the 1^st accused or the 2^nd accused had an intent to have sexual intercourse with PW1
  • The lack of consent of the PW1 to have sexual intercourse
  • Either one of the accused have actually attempted to have sexual intercourse
  • The 2^nd accused has unlawfully assaulted PW2
• 12.8 Therefore, this court is also unable to be satisfied that the necessary elements, to prove one count of Attempt to Rape that has been levelled against both the accused in the charge sheet, have been proved.
  

13. Conclusion

• 13.1 Accordingly, this court is satisfied that the prosecution has not managed to prove beyond reasonable doubt that either one of the accused in this case has committed Attempt to Rape contrary to Section 208 of the Crimes Decree No. 44 of 2009 or the 2^nd accused has committed Common Assault contrary to Section 274 of the Crimes Decree No. 44 of 2009.
• 13.2 Accordingly, I acquit both the accused from the charges against them.
  
• 13.3 28 days to appeal.

DATED at Nadi on this 18^th day of November, 2021.

.........................................
Nilmini Ferdinandez
RESIDENT MAGISTRATE