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State v Kishore - Judgment [2015] FJHC 330; HAC75.2014 (4 May 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 75 OF 2014

STATE

v

SUDESH ANAND KISHORE

Counsel: Ms J Fatiakifor the State
Mr R Kumar for the Defence

Dates of Hearing: 29th April 2015 – 01st May 2015
Date of Summing Up: 04th May 2015
Date of Judgment: 04th May 2015

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as S.L.]

1. The accused person was charged with the following offences:
   

First Count
Representative Count
Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

SUDESH ANAND KISHORE between the 1st of January 2010 and the 31st of January 2010 at Sigatoka in the Western Division had unlawful carnal knowledge of S.L. without her consent.

Second Count
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a), (3) of the Crimes Decree No. 44 of 2009.

SUDESH ANAND KISHORE between the 1st of February 2010 and the 31st December 2011 at Sigatoka in the Western Division, had carnal knowledge of S.L. a girl below the age of 13 years.

2. After trial, the assessors unanimously opined that the accused is guilty on Counts No. 1 and2 as charged. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. The complainant S.L. testified in court as to how she was raped by the accused. She said that it happened plenty times. It had happened when she was staying with Bimla the mother who adopted her and the accused. She had informed that to her adopted mother Bimla where she did not believe her. Then she also informed that to Bimlas' sister. The evidence of Shanti, Bimlas' sister was that S.L. complained to her that the accused was hugging her. Then she had mentioned it to Bimla, where Bimla had denied. The complainant S.L had been consistent. I observed her demeanor and this court has no reason to doubt her testimony.
   
4. The medical officer Dr. Evelyn Tuivuga gave evidence on her medical examination on S.L. She said that the child S.L.'s vagina was gaping open, which evidence was unchallenged. She also said that it is consistent with blunt penetration.
   
5. In his caution interview and charge statement the accused had made confessions on the allegations. Police officers giving evidence said that those confessions were made by the accused voluntarily and they denied any kind of assault on the accused that was suggested by the defence.
   
6. Accused in his evidence denying the allegations said that he was forced to sign the cautioned interview statement and that he never signed the charge statement.
   
7. When I consider the evidence of the alleged victim, I find that the victim S.L. was forthright and consistent. I have no reason to doubt her testimony which was unchallenged that she was staying with Shanti for one year before she was brought by her mother back. As agreed by the parties in agreed fact No.5, and the evidence placed before this court, I find that the accused had access to the victim S.L. and that the accused had had sexual intercourse with the victim during the period relevant to counts No. 1 and 2.I find that the accused was evasive and not consistent when giving evidence. I also find that the evidence of the accused was not truthful when he denied having intercourse with the victim S.L.
   
8. I also find that the victim S.L. was incapable of giving consent to sexual intercourse as she was only 9 years of age at the time of the alleged offence committed in count No.1. As far as the element of consent in count No. 2 is concerned, the victim S.L. was incapable of giving consent to sexual intercourse as she was below 13 years of age.
   
9. Hence I find that the prosecution has proved that the accused has committed the crimes mentioned in counts 1 and 2 beyond reasonable doubt.I find that the unanimous opinion of the assessors that the accused is guilty on both counts No. 1 and 2 is not perverse. Therefore, I accept the unanimous opinion of the assessors that the accused is guilty of counts No. 1 and 2. I convict the accused on counts No. 1 and 2 accordingly.
   

Priyantha Fernando
Judge

At Lautoka
04th May 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused