IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 495/2021

BETWEEN:	STATE

PROSECUTION
AND:		N.P.S
ACCUSED

Counsel:		WCPL 4897 Venu Singh for Police Prosecution
			Mr. M. Yunus for the Accused

Date of Trial:		17 January 2025
Date of Judgment:	20 February 2026.

JUDGMENT

Introduction

1.	The names of the victim and the Accused are suppressed for the purposes of recording and publication.

2.	In CF 495/21, on 13 October 2021, the Accused was charged and produced in Court for 3 counts of Indecent Assault contrary to section 212(1) of the Crimes Act 2009, 2 counts of Sexual Assault contrary to section 210(1) of the Crimes Act 2009,1 count of Criminal Intimidation contrary to section 375(1)(a)(i) of the Crimes Act 2009 and 1 count of Assault causing Actual Bodily Harm contrary to section275(1) of the Crimes Act 2009. 

3.	On the same date, the Accused was also charged and produced in Court in CF 493/21 for 2 counts of Assault causing Actual Bodily Harm contrary to section 275(1) of the Crimes Act 2009.

4.	The Accused subsequently pleaded Not Guilty to the above charges in both files on 7 July 2022.

5.	Subsequently on 8 July 2024, Prosecution made an application to file Consolidated charges. A consolidated charge was then filed and the 2 files of the Accused were consolidated into CF 495/21. As per the Consolidated charge, the Accused was charged with 3 counts of Indecent Assault contrary to section 212(1) of the Crimes Act, 2 counts of Sexual Assault contrary to 210(1) of the Crimes Act 2009, 1 count of Criminal Intimidation contrary to section 375(1)(a)(i)(iv) of the Crimes Act 2009 and 3 counts of Assault causing Actual Bodily Harm contrary to section 275(1) of the Crimes Act 2009.

6.	On 24 July 2024, as Counts 3 and 5 being Sexual Assault were indictable offences triable summarily, the Accused elected the Magistrates’ Court to deal with the charges and then pleaded Not Guilty to all offences in the Consolidated Charge.

7.	On 31 October 2024, Prosecution amended Count 5 to Indecent Assault. Given this amendment, Count 5 was put to the Accused and he pleaded Not Guilty to the offence. The particulars of the offences in the Consolidated charge as at 31 October 2024 are as follows:

Count 1
Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her stomach on top of her clothes. 

Count 2
Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her stomach inside her clothes. 

Count 3
Statement of Offence

Sexual Assault: Contrary to Section 210(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her buttock inside her panty. 

Count 4
Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her thigh. 

Count 5
Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by pulling her shorts down. 

Count 6
Statement of Offence

Criminal Intimidation: Contrary to Section 375(1)(a)(i)(iv) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division without lawful excuse threatened R by showing his fists and uttering the words “I will punch you” with intent to cause alarm to R. 

Count 7
Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted R thereby occasioning her actual bodily harm. 

Count 8
Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted Ramesh Prasad thereby occasioning him actual bodily harm. 

Count 9
Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted Rishil Prasad thereby occasioning him actual bodily harm. 

8.	On 25 January 2025, the date of Trial, Prosecution called 4 witnesses and thereafter closed its case. The Court held that there was a case made out against the Accused to sufficiently require him to make a defence in respect of 9 counts. The procedure under section 179 of the Criminal Procedure Act was explained to the Accused. It was also explained to them that he had a right to remain silent. The Accused chose to give evidence and call a witness.

9.	The Accused gave evidence and the matter was adjourned to allow the Accused to bring his witness to Court. On 25 November 2025, Defence informed the Court that they could not locate their witness as such they closed their case. 

10.	 This Court acknowledges the delay from 25 January 2025 to 25 November 2025 which was because of the unavailability of the Court for the better part of 8 months due to health reasons.

11.	Further, by consent the following documents were tendered:

i.	Birth Certificate of R – ‘PEX1’;
ii.	Rough Sketch Plan – ‘PEX2A’;
iii.	Fair Sketch Plan – ‘PEX2B’;
iv.	Photographs of scene – ‘PEX3’;
v.	Medical Report of R – ‘PEX4’;
vi.	Medical Report of Ramesh Prasad – ‘PEX5’ and
vii.	Medical Report of Rishil Prasad – ‘PEX6’,

12.	Both parties informed the Court that they would rely on the court record. Having considered the evidence before the Court, I now pronounce my Judgment.

Burden of Proof

13.	It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.

14.	It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.

Summary of Evidence

15.	The victim, R testified that on 11 October 2021 at around 3:30-3:40am she had been at home with the Accused who is her stepfather. She explained that as she was sleeping on the mattress in the sitting room, she felt the Accused’s hand on her stomach which he touched 2-3 times over the black t-shirt she had been wearing then he placed his hand underneath her T-shirt with his hand moving towards her buttocks and touched her buttocks under her garments. 

16.	She then testified that he then took his hands to her thighs and touched her thighs. R then stated that she stood up and went and sat on the settee and then the Accused grabbed both her wrists and forcefully dragged her down to the mattress and said for her to sleep with him. It was then that he pulled her shorts down to her thigh. R testified that she started yelling for help and called out to her aunty. It was then that she stated that he showed his fist and told her if she yelled then he would punch her.

17.	After freeing herself and running to the washroom and locking herself inside, only to wait until the Accused had gone inside the room, then R ran to her aunty’s place. R testified that she banged on their door and explained to her aunty – Sharina Bibi what the Accused had done to her. As per R, the Accused had followed her and that her uncle and brother had told him not to go anywhere which then led to an altercation between the Accused and her uncle and brother.

18.	Sharina Bibi (‘Ms. Bibi’), Ramesh Prasad (‘Mr. Prasad’) and Rishil Prasad (‘Mr. Rishil’) all testified that they heard R calling that particular day as such they rushed out to find her crying and scared. It was then that R informed that what the Accused had done to her. They all stated that when the Accused had been questioned, he had said to the effect that he was teaching R what was right and wrong. They all stated that the Accused tried to leave when he was informed that they would call the Police. As per Ms. Bibi, Mr. Prasad and Mr. Rishil the Accused then assaulted Mr. Prasad and Mr. Rishil.

19.	The Accused in his evidence denies that he had touched the victim as alleged. Rather, he testified that he had been leaving for work that particular morning and had been trying to wake R so that she could go to her uncle’s home. However, the Accused stated that R refused to and then go up as such he got angry with her. The Accused testified that R went through the back door and that at the time she was sleepy.

20.	With respect to assaulting Mr. Prasad and Mr. Rishil, the Accused testified that it was Mr. Prasad who grabbed his collar which caused one of his buttons to come off and as he was trying to leave, he pushed Mr. Prasad who then fell and it was only then that Mr. Rishil came and punched him.

Evaluation of Evidence

21.	From the outset, there was no dispute regarding the Accused identity at the time of the alleged offending. It is evident from the evidence of the Accused that he was present with R at home at the time of the alleged incidents relating to her and that he had also been present with Ms. Bibi, Mr. Prasad and Mr. Rishil.

22.	Further, R’s Birth Certificate was tendered by consent and marked as ‘PEX1’. Thus, there is no dispute that R was born on 5 June 2008 and as such, at the time of the alleged offending she was 13 years and 4 months old.

23.	In State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024) His Lordship Justice Rajasinghe referred to the Liberato principle as expounded in Liberato and Others v The Queen [1985] HCA 66; 159 CLR 507 at 515 where Brennan J held that:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

24.	Prasad [supra] also made reference to the case of Naidu v State [2022] FJCA 166; AAU0158.2016 (24 November 2022) where His Lordship Prematilaka highlighted the importance of modifying the Liberato principle and held: 

[29] On the other hand Liberato has not uttered the final word on this issue. In Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 at 535 [14]- [15] Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue.

[30] For that reason, it was usefully held in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 at 121 [26] that it is preferable that a Liberato direction be framed along the following lines (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

25.	His Lordship Justice Rajasinghe in Prasad [supra] further stated “if the Court believes the evidence given by the Accused is true or may be true, then the Court must find the Accused not guilty of the offences. Even if the Court rejects the Accused version, that does not automatically imply that the Prosecution has established that the Accused is guilty of the crime. The Prosecution must satisfy that it has established, on the evidence accepted by the Court, beyond a reasonable doubt, that the Accused committed these offences as charged in the information”.

26.	Thus, the Court will need to evaluate the evidence by Prosecution whilst keeping in mind the evidence presented by the Accused insofar as they relate to the issue it is considering. The evidence presented by the parties will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024). In doing this, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).

27.	Considering the Accused’s evidence, he testified that on 11 October 2021 he had been at home and given that he was working in Nadi, he had to leave at 4:30am. As such, he had been waking R up to tell her to go to her uncle’s – Ramesh Prasad’s home and that he had called out to her aloud 2-3 times. However, R informed him that she was not going to go over and that she would stay in the house. The Accused then said that he got angry with her especially as he would be working at night and she would be all alone. 

28.	Mr. Prasad and Mr. Rishil both confirmed that the Accused worked in Nadi and Mr. Rishil confirmed that he also worked with the Accused and that they would normally leave for work between 4-5am. Further, Mr. Rishil confirmed that on that particular date, they had work but because of the incident they did not go. However, the Court is mindful that the Accused never challenged R’s evidence that he had been grogging and watching tv at that time.

29.	The Accused then went on to state that R went through the back door and that at the time she was sleepy. He then said that R used to cry over small things. However, in cross-examination of R, when it was suggested that when she had woken up, she started crying, R denied this. However, the Accused in his evidence never stated that R had been crying when she had woken up. Additionally, the Accused never explained why he had followed R, especially if he had wanted her to go to her uncle’s home in the first place. 

30.	Further, the Accused stated that Ramesh had entered into his compound/boundary and that Ramesh had grabbed his collar which caused one of his buttons to come off as such he told Ramesh to leave him and that he was going. It was then that he had pushed Ramesh hard which caused Ramesh to fall and then Rishil came and punched the Accused. The Accused stated that he questioned Rishil why he had punched him and because they were holding him, the Accused freed himself and went to the Hospital to tell his wife what they had done to him.

31.	The Accused then explained that his relationship with Ramesh was not good as he was with Ramesh’s sister and they were not married and that nothing belonged to him such as the house even though he had built the house. 

32.	However, when it was suggested to Ms. Bibi in cross-examination that she had forced R to make a false allegation against the Accused especially as her husband and son had assaulted the Accused, Ms. Bibi denied this and explained that their relationship was good and that they were in talking terms. Even when it was suggested to R in cross-examination that before this incident, she and the Accused did not have a good relationship, R denied this and stated that they had had a good relationship.

33.	The Court is also mindful that in cross-examination, the Accused had stated that he had told the Police when the Police had taken him to the Hospital that Ramesh and Rishil assaulted him.

34.	When considering the probability of the Accused’s evidence, if the Accused had an acrimonious relationship with Ramesh and if they had assaulted the Accused, why didn’t the Accused immediately go to the Police Station and report the matter? This is more so especially if he was alleging that Ramesh would do anything such as have R lodge a false complaint to get the house that the Accused stated that he had built. Why did the Accused think it sensible to go and tell his wife who was at the Hospital at the time? What assistance would she had provided whilst at the Hospital?

35.	Further, the probability of the ulterior motive raised by the Accused with respect to Ramesh Prasad wanting the house the Accused had built and resided in, is questionable. Why then would Ramesh all of a sudden approach the Accused so early in the morning to assault him and for the house? 

36.	Considering the above, the Court finds that the Accused’s version does not create a reasonable doubt in Prosecution’s case.

37.	For a proper analysis of the evidence for the offences of Sexual and Indecent Assault, it is imperative for the Court to turn its mind to the elements of the offending, which are:

i.	the accused 
ii.	unlawfully and indecently 
iii.	assaulted the Complainant.

38.	In the case of State v Waqabaca Criminal Case No. HAC 5 of 2022 (16 January 2023) where His Lordship Justice Kulatunga, when directing his mind to the elements of Sexual Assault, stated at paragraphs 6 and 7 of the Judgment:

“Sexual assault is an aggravated form of indecent assault. The prosecution must prove the above elements against the accused beyond reasonable doubt. “Assault” is to apply unlawful force to the person of another without his or her consent. The “assault” must be considered “indecent” by right thinking members of society. The test is basically objective.

The ingredients of Sexual assault under the 1st limb of section 210 and indecent assault as defined under section 212 of the crimes Act are the same except for the distinction in the titles of the respective sections. It appears that sexual assault is an aggravated form of indecent assault as it carries a higher sentence. Thus, considering the use of the word ‘sexual’ in the title of section 210, I am of the view that, sexual assault should necessarily be involuntary contact of a ‘sexual’ nature that occurs through the Accused's use of force, coercion or the victim's incapacitation.

39.	Thus, as per Waqabaca [supra] indecent is what any right-thinking member of society thinks is indecent conduct and sexual assault is an aggravated form of indecent assault and needs to be involuntary contact of a sexual nature that occurs through an accused’s use of force, coercion or the victim’s incapacitation.

40.	For the offence of Criminal Intimidation, the elements are:

i.	the accused
ii.	without lawful excuse
iii.	threatened another person
iv.	with intent to cause alarm to that person.

41.	Lastly, the elements of the offence of Assault causing Actual Bodily Harm are:

i.	the accused
ii.	commits an assault causing actual bodily harm
iii.	to another.

42.	Bearing the above elements in mind, the Court will now consider Prosecution’s evidence.

43.	In her evidence, R testified that on 11 October 2021, she was at home in the living room, sleeping on the mattress whilst the Accused was grogging and watching tv. Her mother, who had been pregnant, had been admitted at Ba Mission Hospital as such she and the Accused were alone in the house. R explained that as she was sleeping, she felt the Accused’s hand on her stomach which he touched 2-3 times over the black t-shirt she had been wearing. R then testified that the Accused then placed his hand underneath her t-shirt with his hand touching her stomach under her t-shirt then moving towards her buttocks and then he touched her buttocks under her garments. She then testified that he then took his hands to her thighs and toucher her thighs. 

44.	It was then that R said she had questioned the Accused with respect to what he was doing and he responded with a smile and said he was doing nothing. R then stood up and went and sat on the settee and then the Accused grabbed both her wrists and forcefully dragged her down to the mattress and said for her to sleep with him. It was then that he pulled her shorts down to her thigh. R testified that she started yelling for help and called out to her aunty. 

45.	It was at this point that R stated that the Accused showed his fist and told her if she yelled then he would punch her. R stated that she yelled again for her aunty and told him that she would tell her mother what he was doing to her. She then stated that he told her that if she told her mother then her mother and the baby would die due to high pressure.

46.	R then testified that the Accused had grabbed her wrist but she somehow managed to push him and that she ran towards the washroom which was at the back, outside from the house but under one roof. She explained that she locked herself in the washroom and as there was a gap between the washroom door, she saw the Accused standing and looking at the door. It was only when the Accused went inside the room that R stated that she opened the door and ran to her aunty’s place which was 5-6 meters from their house. She banged on their door and explained to her aunty – Sharina Bibi what the Accused had done to her. She stated that she was terrified, trembling and shivering.

47.	Ms. Bibi, Mr. Prasad and Mr. Rishil all testified in their evidence that they heard R shouting as such they went outside and saw that R was crying and really scared and that she then informed them of what had happened. They all confirmed that the Accused had followed R who had stated the same in her evidence.

48.	The evidence of Ms. Bibi, Mr. Prasad and Mr. Rishil is consistent with the evidence of R who had testified that she had ran to their home and shouted for them and that when they had opened their door, they had found her crying and that she was really scared. Further, their evidence is also consistent that the Accused had followed R when she had come to their home.

49.	Further, the evidence of Ms. Bibi that R had told her that the Accused touched her private parts and the evidence of Mr. Prasad that R had said that the Accused had been touching her and opening her pants is consistent to the evidence of R who had testified that the Accused had touched her stomach (over and under her t-shirt), touched her buttock inside her undergarment as well as her thigh and pulled her pants down. Therefore, I find that R’s evidence was truthful with respect to the Accused touching her stomach (over and under her t-shirt), touching her buttock inside her undergarment as well touching her thighs and pulling her shorts down.

50.	Additionally, when considering whether the Accused had threatened R by showing his fist and saying her would punch her with the intention to cause alarm to her, the evidence of R was that when the Accused had grabbed her wrists and forcefully dragged her down to the mattress, he told her to sleep with him and then pulled her shorts down to her thigh, R started yelling for help. It was then that she stated that he showed his fist and told her if she yelled then he would punch her. After some time, R was able to push the Accused and run to the washroom and lock herself inside. It was only after seeing the Accused going back into the house through the gap of the door, that R then ran to her aunty’s home.

51.	Considering the evidence of Ms. Bibi, Mr. Prasad and Mr. Rishil as stated at paragraph 47 herein with the above evidence of R, the only indisputable inference that can be drawn here is R was also scared of the Accused’s threat and genuinely believed it that she fled from her home to her aunty’s house to inform them what the Accused had done and said to her. I therefore, find that R was being truthful with respect to the Accused showing his fist and threatening to punch her.

52.	Regarding the Accused assaulting R, Prosecution submits that the Accused grabbing R’s wrists constitutes the offence of assault causing actual bodily harm. 

53.	In State v Chand; Criminal Case No. HAC 71 of 2007 (20 November 2008) His Lordship Justice Sherry defined ‘bodily harm’ as:

“Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of Navineshwar Nand. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling. Bodily harm should receive a wide interpretation and not be restricted to harm to the skin, flesh and bones of Navineshwar Nand. It may include organs, nervous system and brain.

54.	In State v Rasiga; Criminal Case No. HAC 34 of 2015 (2 March 2017) His Lordship Wengappuli defined harm as “including any bodily hurt and pain suffered by the victim”.

55.	Thus, bodily harm needs to be more than merely transient or trifling but not permanent and is not restricted to harm to the skin, flesh or bones but also organs, nervous system and brain as well as any pain suffered by the victim.

56.	Prosecution relies on the Medical Report of R which was tendered as ‘PEX 4’ to establish the injury sustained by R. The Medical Report shows that R was examined on11 October 2021 and the Doctor in her specific medical findings states that there was slight tenderness on the right wrist.

57.	Considering R’s evidence in conjunction with the Medical Report, I find that R was being truthful with respect to the Accused grabbing her wrist when he dragged her down to the mattress and when grabbed her wrist again before she managed to push him away and run to the washroom.

58.	With respect to the assault perpetrated against Mr. Prasad and Mr. Rishil, R stated that her uncle and brother - Rishil had told the Accused not to go anywhere but then he started running so they caught him which led to the Accused punching Rishil on his left eye and punching and grabbing her uncle’s neck.

59.	Ms. Bibi testified that her husband – Ramesh Prasad questioned the Accused who had been standing outside of their porch. As per Ms. Bibi, the Accused started laughing and said that he was teaching R what was right and wrong then he started running away which led to her husband trying to stop him but then the Accused strangled him and punched him. Ms. Bibi even testified that her son – Rishil went to save her husband which is when the Accused punched him on his eye.

60.	Mr. Prasad testified that when R informed what the Accused had done, the Accused had followed her as such Mr. Prasad asked him what had happened to which the Accused responded that he was teaching her. Mr. Prasad then explained that he opened his gate and went to the Accused as he saw that R was scared and shaking and he had figured something was wrong. Mr. Prasad explained that he told his son to call the Police and told the Accused not to go anywhere. As Mr. Prasad approached the Accused, he stated that the Accused started hitting him and that he was hit on his shoulder and that as he was on the ground, the Accused strangled him and dragged him to a distance. Mr. Prasad also testified that the Accused had hit his son on the eye.

61.	Mr. Rishil testified that when his father then asked the Accused what had happened to which he responded nothing and that he had been teaching R about good and bad touch. It was then that Mr. Rishil said his father had informed that he would call the Police. It was then that the Accused punched Mr. Rishil’s father and when Mr. Rishil had gone to pick his father up, the Accused then punched him. 

62.	Mr. Rishil then testified that the Accused turned and left but then his father told him not to let the Accused get away so Mr. Rishil then held the Accused from the back and his father approached the Accused from the front. It was then that the Accused held his father’s neck and then Mr. Rishil fell. The Accused then went away. 

63.	In the case of State v Naqova & Ors Criminal Case No. HAC 057 of 2022 (15 June 2023) His Lordship Justice Rajasinghe dealt with the issue of Prosecution’s witnesses presenting 3 versions of evidence with respect to who had participated in the assault. His Lordship referred to the case of Mohan & Anor v Regina (1967) 2 All ER 58 and stated:

“It is not unusual to observe inconsistences in the evidence given by such witnesses, recalling a rapid and sudden event observed by lights of street lamps from different locations and directions. The Court must consider whether, irrespective of those inconsistencies, witnesses of Prosecution are, in substance, telling the same story.”

64.	Considering Naqova [supra], the evidence of R, Ms. Bibi, Mr. Prasad and Mr. Rishil’s with respect to the incident between Mr. Prasad, Mr. Rishil and the Accused is also consistent in that they all confirmed that the Accused had assaulted Mr. Prasad which caused him to fall to the ground, that the Accused strangled Mr. Prasad and that as Mr. Rishil was going to help his father – Mr. Prasad, the Accused punched Mr. Rishil on his eye.

65.	Mr. Prasad’s Medical Report was tendered as ‘PEX5’ and Mr. Rishil’s Medical Report was tendered as ‘PEX6’. Mr. Prasad was examined on 11 October 2021 and the Doctor’s specific medical findings were that he had an abrasion and bruises on the right side of his chest wall and shoulder with abrasions on his neck, right elbow and right knee. In the Doctor’s professional opinion these were superficial injuries secondary to injury by blunt force and partly due to a sharp object.

66.	Mr. Rishil was examined on 11 October 2021 and the Doctor’s specific medical findings was that the left eye was bruised/hematoma with normal vision with an abrasion on his left thigh and hip area caused from being dragged and abrasion on left knee. The Doctor’s professional opinion was that the injuries to the limbs were superficial and likely from dragging whilst the eye injury was from blunt force.

67.	Considering the evidence of Mr. Prasad and Mr. Rishil in conjunction with the Medical Reports tendered, I find that Mr. Prasad and Mr. Rishil were being truthful with respect to the Accused assaulting them. I also find that the evidence of R, Ms. Bibi, Mr. Prasad and Mr. Rishil with regards to the Accused assaulting Mr. Prasad and Mr. Rishil as credible and reliable and therefore truthful. 

68.	Thus, considering the evidence in totality, the Court finds that Prosecution has satisfied beyond a reasonable doubt that the Accused indecently assaulted R by touching her stomach on top of her t-shirt, touching R’s stomach underneath her t-shirt, touched R’s thighs and pulled R’s shorts down. 

69.	Prosecution has also satisfied beyond a reasonable doubt that the Accused sexually assaulted R dragging her to the mattress and then touched her buttocks inside her undergarment and that he had then criminally intimidated R by showing his fist and saying he would punch her.

70.	Moreover, Prosecution has proven beyond reasonable doubt that the Accused assaulted R, Mr. Prasad and Mr. Rishil thereby causing them actual bodily harm as reflected in the Medical Reports tendered.

Determination

71.	I find that Prosecution has discharged its burden in proving all the elements for 4 counts of Indecent Assault, 1 count of Sexual Assault, 1 count of Criminal Intimidation and 3 counts of Assault causing Actual Bodily Harm beyond reasonable doubt. 

72.	I, therefore, find the Accused – N.P.S guilty of 4 counts of Indecent Assault, 1 count of Sexual Assault, 1 count of Criminal Intimidation and 3 counts of Assault causing Actual Bodily Harm.

N. Mishra
Resident Magistrate