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State v Chand [2023] FJHC 727; HAC89.2022 (29 September 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 89 of 2022

STATE

V

RITESH CHAND

Counsel : Ms. Sheenal Swastika for the State

Mr. Bharat Makanjee with Ms. Keli Vulimainadave, Ms. Payal Reddy and Ms. Nimita Sharma for the Accused

Dates of Trial : 5 & 6 September 2023

Closing Submissions : 12 September 2023

Judgment : 29 September 2023

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “RAC” or simply “R”.

JUDGMENT

[1] As per the Information filed by the Director of Public Prosecutions (DPP), the accused above-named is charged with the following offence:

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of Offence

RITESH CHAND, on the 29^th of May 2022, at Maro, Sigatoka, in the Western Division penetrated the vagina of RAC, a child under the age of 13 years, with his finger.

[2] The accused pleaded not guilty to the charge and the ensuing trial was held over 2 days. Thereafter, the Learned Counsel for the State and Defence made their closing submissions.

The Burden of Proof and the Standard of Proof

[3] Section 57 of the Crimes Act No. 44 of 2009 (Crimes Act) provides that the prosecution bears a legal burden of proving every element of an offence. The Section reads as follows:

(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.

(3) In this Decree (Act)—

"legal burden", in relation to a matter, means the burden of proving the existence of the matter.

[4] Section 58 (1) of the Crimes Act stipulates that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

Legal Provisions and the Elements of the Offences

[5] As could be observed the accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.

[6] Section 207(1) of the Crimes Act reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[7] Section 207(2) of the Crimes Act is reproduced below:

(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.

[8] Section 207 (2) (b) makes reference to a person penetrating 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. In the instant case, the accused has been charged for penetrating the vagina of the complainant with his finger.

[9] Therefore, in order to prove the first count of Rape against the accused, the prosecution must establish beyond reasonable doubt that;

(i) The accused;

(ii) On the specified day (in this instance the 29 May 2022);

(iii) At Maro, Sigatoka, in the Western Division;

(iv) Penetrated the vagina of the complainant RAC, with his finger;

(v) At the time the complainant RAC was a child under the age of 13 years.

[10] To further elaborate upon these elements in respect of the count of Rape. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the said offence.

[11] The second element relates to the specific date on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond reasonable doubt.

[12] The fourth element involves the penetration of the complainant’s vagina, with the accused’s finger. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his finger to any extent.

[13] The final element is that at the time of the incident the complainant was a child under 13 years of age. The issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As would be seen later in this judgment, the complainant in this case was only 3 years and 6 months at the time of the alleged incident of Rape, and therefore, she had no mental capacity to give consent. [Her date of birth being 30 November 2018].

[14] It must also be noted that in terms of Section 129 of the Criminal Procedure Act, it is stated that no corroboration of the complainant’s evidence is necessary to prove an offence of a sexual nature; Rape is obviously considered as an offence of a sexual nature. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.

[15] In this case an application was made by the prosecution in terms of Section 134 of the Criminal Procedure Act, to tender the statement made by the complainant to the Police on 1 June 2022 as admissible evidence. This was primarily due to the fact that the complainant was only 3 years and 6 months of age at the time of the alleged incidents.

[16] Section 134 of the Criminal Procedure Act is reproduced below.

“134. — (1) In any criminal proceedings, a written statement by any person shall, if such of the conditions mentioned in sub-section (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The conditions referred to in sub-section (1) shall be that —

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his or her knowledge and belief and that he or she made the statement knowing that, if it were tendered in evidence, he or she would be liable to prosecution for any statement in it which he or she knew to be false or did not believe to be true;

(c) at least 28 clear days before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings;

(d) none of the other parties or their lawyers within 14 days from the service of the copy of the statement serves a notice on the party so proposing, objecting to the statement being tendered in evidence under this section.

(3) The conditions stated in sub-section (2) (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be tendered.

(4) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section—

(a) if the statement is made by a person under the age of 21 years, it shall state the age of the person;

(b) if it is made by a person who cannot read it, it shall be read to the person before signature in a language he or she understands and shall be accompanied by a declaration by the person who read the statement to the effect that it was so read; and

(c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under sub-section (2)(c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy of it.

(5) Notwithstanding that a written statement made by any person may be admissible as evidence under this section —

(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence; and

(b) the court may of its own motion, and shall on the application of any party to the proceedings, require that person to attend before the court and give evidence or to submit to cross-examination.

(6) So much of any statement as is admitted in evidence under this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.

(7) Any document or object referred to as an exhibit and identified in a written statement rendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

(8) A document required by this section to be served on any person may be served—

(a) by delivering it to the person or to his or her lawyer; or

(b) by addressing it to the person and leaving it at his or her usual or last known place of abode or place of business or by addressing it to his or her lawyer and leaving it at his or her office; or

(c) by sending it by registered post to the person at his or her last known place of residence or place of business, or addressed to the person’s lawyer at his or her office; or

(d) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post addressed to the secretary or clerk of that body at that office.

(9) The provisions of this section are subject to any provisions of any law dealing with the giving and admissibility of evidence in criminal cases, and shall be read and applied subject to the provisions of such a law.”

[Emphasis is mine].

[17] The Learned Defence Counsel had no objection to this application made by the State.

[18] In the opinion of Court, since the recorded statements satisfy the conditions stipulated under Section 134 (2) of the Criminal Procedure Act, this Court permitted the application made by the State to tender the statement made by the complainant to the Police as admissible evidence to the like extent as oral evidence of the complainant.

The Agreed Facts

[19] Section 135 of the Criminal Procedure Act deals with “Admission of facts”. The Section is reproduced below:

135. — (1) An accused person, or his or her lawyer, may in any criminal proceedings admit any fact or any element of an offence, and such an admission will constitute sufficient proof of that fact or element.

(2) Every admission made under this section must be in writing and signed by the person making the admission, or by his or her lawyer, and—

(a) by the prosecutor; and

(b) by the judge or magistrate.

(3) Nothing in sub-section (2) prevents a court from relying upon any admission made by any party during the course of a proceeding or trial.

[20] Accordingly, the prosecution and the defence have consented to treat the following facts as “Agreed Facts”:

1. THAT the complainant in this matter is RAC.
   
2. THAT RITESH CHAND is charged with one count of Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.
   
3. THAT at the time of the alleged offending, the complainant was 3 years 6 months old being born on the 30^th November 2018.
   
4. THAT the alleged offence occurred on the 29^th of May 2022.
   
5. THAT RITESH CHAND was 34 years old at the time of the alleged offending.
   
6. THAT RITESH CHAND is known to the complainant as he is in a de-facto relationship with the complainant’s mother namely ASHIKA LATA CHAND.
   
7. THAT RITESH CHAND resided at Maro, Sigatoka with the complainant and her mother at the time of the alleged offending.
   
8. THAT RITESH CHAND had been residing with the complainant and ASHIKA LATA CHAND at Maro, Sigatoka since 14^th February 2021.

[21] Since the prosecution and the defence have consented to treat the above facts as “Agreed Facts” without placing necessary evidence to prove them, the above facts are proved beyond reasonable doubt.

Case for the Prosecution

[22] The prosecution, in support of their case, called the complainant (RAC), her mother Ashika Lata Chand and Dr. Shimal Sharma.

[23] The prosecution also tendered to Court a copy of the statement made by the complainant to the Sigatoka Police on 1 June 2022 (hand written statement in the English Language) as Prosecution Exhibit PE1 and the copy of the Medical Examination Report of the complainant (Medical Examination conducted by Dr. Shimal Sharma) as Prosecution Exhibit PE2.

[24] Evidence of the complainant RAC

(i) The complainant’s evidence was recorded over a period of one day. Her evidence was recorded in a ‘closed court’ and a screen was placed so that the complainant could not see the accused.
(ii) Further measures were taken in this case whereby the Judge and all Counsel dispensed with their wigs and gowns at the time the complainant was testifying and where the Judge sat at the Court Officers’ table below to hear the complainant’s testimony.
(iii) At the time of testifying in Court the complainant was 4 years 9 months of age. This Court was satisfied that the complainant was competent of taking her oath prior to giving evidence.
(iv) At the commencement of her testimony the contents of her police statement were read out aloud in Court.
(v) Accordingly, the statement made by the complainant to the Sigatoka Police on 1 June 2022 (hand written statement in the English Language) [Prosecution Exhibit PE1], and which is admitted as evidence, reads as follows:

Q1: What is your name?

A: RA.

Q2: How old are you?

A: Three years.

Q3: What is your mother’s name?

A: Ashika Chand.

Q4: Is your mother working?

A: Staying home.

Q5: What is your father’s name?

A: Ritesh Chand.

Q6: Who all staying in the house?

A: Mummy, Papa and I.

Q7: Where do you stay?

A: Maro, Sigatoka.

Q8: Where is your father working?

A: Punjas (Sales Person).

Q9: Did anything happen to you?

A: Yes.

Q10: What happened?

A: The father poke the fingers.

Q11: Where did he poke the fingers?

A: In my puky.

Q12: How did he poke the fingers?

A: My father put his hand inside my panty and poke his hands.

Q13: How did he put the fingers?

A: I was sleeping on my father’s lap when he put his hand inside her (my) pants.

Q14: How long did he put the fingers inside your puky?

A: I don’t know.

Q15: What were you doing on your father’s lap?

A: I was watching TV.

Q16: Was there any pain?

A: Yes.

Q17: When you had pain, what did you do?

A: I hit Papa.

Q18: How did you hit your papa?

A: With my leg.

Q19: After hitting your father, where did you go?

A: To my mummy.

Q20: Where was your mummy?

A: In sitting room.

Q21: R when you were sleeping on your father’s lap, where was your mother?

A: Mummy was in the room.

Q22: Was it day or night time?

A: Night time.

Q23: Did you inform your mummy about the pain?

A: Yes.

Q24: When did you inform?

A: In the afternoon.

Q25: Did your father did this before?

A: Yes.

Q26: What did he do before?

A: He put the hands in the puky.

Q27: Did you inform your mother before?

A: No.

Q28: Why did you (not) inform your mother?

A: I was scared.

Q29: When you pee, was it paining?

A: Yes.

Q30: Did you see any blood when you pee?

A: No.

Q31: Did you see blood in your panty?

A: Yes.

Q32: How did you see blood on your panty?

A: When mummy was taking off my panty.

Q33: When you were bathing was there any pain in your puky?

A: Yes.

Q34: Did your father tell you anything?

A: Yes.

Q35: What did your father tell you?

A: Not to tell mother that he put fingers inside my puky.

(vi) In addition to the above, further questions were put to the complainant by the Learned State Counsel.
(vii) The complainant was asked to tell Court what she had told the Police. She said: “He poked finger”, and showed the index finger (pointer finger) on her right hand.
(viii) When asked where did he poke? The witness said in the front and pointed towards her private part. The complainant was given a doll and told to show on the doll as to the place. The witness lifted the skirt of the doll and pointed towards the vagina/private part.
(ix) When asked as to what she calls that area, the witness said ‘nunu’ (not a proper Hindi term, but it is said to denote the vagina).
(x) She confirmed that it was Ritesh the accused who had poked his pointer finger in her vagina. She referred to him as Papa Ritesh. The witness said that she had hit the accused with her legs.
(xi) When asked how she felt when he had poked his finger in her ‘nunu’, the witness said that blood had come out on the panty.
(xii) When asked what she meant by puky (as stated in her Police Statement), the witness said: “down thing”. Later the witness pointed on the doll to the area of her vagina.
(xiii) When asked as to where exactly was the pain (as stated in her Police Statement), the witness again pointed on the doll to the area of her vagina.
(xiv) She said the incident had happened when they were watching TV at home (they were watching game on TV). Both she and the accused had been sitting down on the rug. She said she had been sleeping on her Papa’s lap.
(xv) At the time the accused had poked her puky, she said her mother was in the sitting room using her phone. After hitting the accused with her legs she had gone to her mum, who was in the sitting room.
(xvi) The complainant said that she did not tell anyone about what the accused did at that time.
(xvii) The complainant said that she had showed it to her mum (meaning the blood on her panty). Her mum had taken a photo in her cell phone. This had happened after she had told her mum that it (that area) was paining. The witness said that her mum had told her: “Let me take a picture and I will see.”
(xviii) The complainant testified that her mother had then put oil in that same place-the witness pointed towards the area of her vagina.
(xix) The witness said that she had told her mummy that Papa Ritesh had put his finger.
(xx) At the time of the alleged incident, the complainant said that she had been wearing a panty and a diaper. On top she was wearing dress.
(xxi) The witness testified that at present she is staying with her mum, her Papa (in reference to her mother’s present partner-her new Papa), her grandma and grandpa.
(xxii) The following questions were then asked from the witness and she answered as follows:

17. If you see Papa Ritesh today would you be able to recognize him?
1. No.
   
17. But you know him?
1. Yes.
   

At this stage the screen was removed and the witness looked (turned) towards the accused.

17. Who is that? Who is sitting there?
1. Brother.
   
17. Whose brother?
1. My brother.
   
17. Have a look around Court. Is Papa Ritesh in Court?
1. No.
   
17. Are you sure Papa Ritesh is not here? Are you telling the truth?
1. No, he is not here.
   
17. You said you know Papa Ritesh?
1. Yes.
   
17. How long have you known Papa Ritesh?
1. Witness indicates it is a long time.
   
17. Are you scared of Papa Ritesh?
1. Yes.
   
17. Are you still scared of Papa Ritesh?
1. Yes.
   

The witness is assured that she does not have to be afraid because now she is in Court. The witness said she understood.

17. Can you tell us the truth?
1. Yes.
   
17. Is Papa Ritesh in Court?
1. No.
   

The child witness is told to look around Court and see for herself. However, it

seems that the witness does not wish to see/look towards the accused.

17. Who is sitting at the back?
1. The witness does not answer initially. Later she says brother.
   
17. Which brother (whose brother)?
1. Your son.
   
17. You have seen a person sitting in Court?
1. Yes.
   
17. You said you know Papa Ritesh?
1. Yes.
   
17. If I send this person out (ask him to leave Court), will you then tell me his name?
1. Yes.
   

The accused was asked to leave Court for a moment.

17. Can you tell me who was sitting there? The name of the person sitting there?
1. Your brother (the witness says it is the Assistant Court Clerk’s brother).
   

At this stage the witness said: “Mummy said, tell he is your brother and mummy

said don’t show”. She also said that her mother had told her this that morning.

(xxiii) At this stage Court decided to take the luncheon adjournment for the day. After resuming sittings the following questions were then asked from the witness and she answered as follows:

Q. If I show you Papa Ritesh will you be able to identify him?

A. Yes.

At this stage even before being asked the witness said that she has seen him and that Ritesh is in Court and that her mum told her.

Q. What did mum tell you?

A. Mummy said to tell, lock Ritesh up.

Q. When did mummy tell you this?

1. Outside. After eating liver and roti (for lunch) we were sitting out there then she said that.
   

Q. Did you eat in the van?

A. Yes.

Q. Who was in the van?

A. Me, Papa, mummy and grandpa.

Q. When you say Papa, who do you mean?

A. My dad.

Q. Do you know his name?

A. My Papa.

Q. Is this different person to Papa Ritesh?

A. Yes.

.......

Q. So you have a new father now?

A. Yes.

Q. So you now live with your new father?

A. Yes. The one sitting in the van.

(xxiv) In this manner the witness identified the accused in the dock as Papa Ritesh.
(xxv) The complainant was cross examined by the defence and the defence case theory was put to the witness.
(xxvi) The complainant admitted that she loves her mother and that she will do anything for her mother. She also admitted that whatever her mother tells her to tell she will tell.
(xxvii) She also admitted that in May last year her mum used to shout and hit her (if she doesn’t listen to what she says).
(xxviii) The complainant admitted that while lying on the rug and watching TV, she was sleeping on top of Ritesh with her legs facing towards the TV. The accused’s legs were also facing towards the TV.
(xxix) The following questions were then asked from the witness and she answered as follows:

17. Do you remember going to the Police Aunty?
1. Yes.
   
17. You went with your mummy?
1. Yes. Mummy, grandpa and Papa took us to Police Aunty.
   
17. Which Papa took you to Police Aunty?
1. New Papa-grandma Aji’s Papa.
   
17. When your new Papa and mummy took you to the Police Station, they were telling you what to say at the Police Station?
1. Yes.
   
17. When Police Aunty was asking you questions, your mummy was also there?
1. Yes. Grandma was also present.
   
17. You remember telling the story to the Police Aunty?
1. Yes.
   
17. When you were talking to the Police and telling the story, that story was given to you by your mother?
1. Yes.
   
17. Before you came to Court this morning, your mummy had told you what to tell us in Court?
1. Yes.
   
17. I suggest to you that your mum kept telling you what to tell about Papa Ritesh?
1. Yes.
   
17. Whatever story you told the Police Aunty about Papa Ritesh, it was told to you by your mum?
1. Yes.
   
17. Even when you were out of Court in the morning and during lunch, it was your mother who told you what to tell about Papa Ritesh?
1. Yes.
   
17. You told this Court this morning that Papa Ritesh had touched your puky?
1. Yes.
   
17. This was told to you by your mother to tell us?
1. Yes.
   
17. In fact Papa Ritesh never poked your puky at any point in time?
1. Yes (he didn’t).
17. It was your mother who told the Police Aunty that your Papa Ritesh touched your puky?
1. Yes.
   

(xxx) In re-examination, the State Counsel attempted to clarify from the witness the answers given by her in cross examination. The following questions were asked from the witness and she answered as follows:

17. Just now you told that Papa Ritesh never poked your puky?
1. Yes.
   
17. Did this really happen? What is the truth?
1. It happened.
   
17. Is this the truth-it really happened?
1. Yes.
   
17. You agreed that your mum asked you to tell Court?
1. Yes.
   
17. Whatever you told Court about Papa Ritesh is it correct?
1. It’s the truth.
   
17. Whatever you told the Police Aunty, is it the truth about Papa Ritesh?
1. It’s the truth. Mum will also come and she will tell you.
   
17. Is it correct to say that it is the truth that Papa Ritesh had poked your puky?
1. It is the truth. He did that.
   

[25] Evidence of Ashika Lata Chand

(i) The witness testified that she is 36 years of age. She is currently residing at Balevuto in Ba. She is doing domestic duties. She said she is in a relationship, but not married yet.
(ii) The witness said that she had been previously married. Her first husband’s name is Rajendra Vikash Chand. They are separated (now divorced). They had 4 children together. The complainant is the youngest child from her marriage with Vikash Chand. Her other three children are with her first husband and residing in Suva, while the complainant is staying with her.
(iii) After separating from her first husband, she was living with her mum. She said she was working and was not in any relationship.
(iv) The witness testified that in 2021, her mother had settled her with Ritesh Chand, the accused. She and her daughter (the complainant) were staying at the accused’s house in Maro, Sigatoka. Later she said it is the accused’s father’s house. There she was staying with the complainant and the accused.
(v) Whilst in Sigatoka she had not been employed. The accused had been working at Punjas.
(vi) The complainant had addressed the accused as Papa. The complainant and the accused had a good relationship. They had a good bonding. The accused had treated her and her daughter well. However, sometimes they used to fight.
(vii) Currently she is in a relationship with one Rajneel. He is also known as Govindar. In Ba she and the complainant are residing with the said Rajneel and his mother and father (she calls them aunty and uncle).
(viii) The complainant addresses Rajneel as Papa and his parents as grandpa and grandma. She had come to Court today together with Rajneel and his father. Rajneel’s mother is said to have been admitted in hospital.
(ix) She has a new born baby who is 3 weeks old. The father of the baby is Rajneel.
(x) The witness testified to the events which took place on 30 May 2022. She said she remembers that day. At the time she was living in Maro, Sigatoka with the accused.
(xi) During the day, the accused had gone to work. The witness was at home with the complainant. The witness had taken the complainant for a shower. She said it was around 1.00 p.m. (1.00 in the afternoon). Then she had seen blood stains on the complainant’s panty. Since she knew nothing about this, she had called her sister in Suva to ask for advice. Her sister had advised that she takes the complainant to hospital. Accordingly, the witness had taken the complainant to hospital the next day (on 31 May 2022).
(xii) The witness testified that she had asked the complainant as to what had happened. The complainant had said that Papa did it-that Papa poked the finger.
(xiii) The witness said that she had taken the complainant to the hospital only on the next day because she didn’t have taxi fare to take her on the same day. On the 31 May 2022, her mother had sent money through Mpaisa. Thereafter, she had taken the complainant to the Sigatoka Hospital.
(xiv) From Sigatoka the complainant was sent to Lautoka Hospital and was admitted for one night.
(xv) After the complainant was released from hospital, she and the complainant had gone back to the same house (the accused’s house). The witness testified that although she did not want to go back to the same house with her daughter, since her mother was in Suva and there was no one to support them, she was compelled to go back to the same house.
(xvi) The witness said that the matter was reported to the Police by the doctor. Thereafter, investigation into the matter had commenced.
(xvii) The witness identified the accused in the dock as Ritesh Chand.
(xviii) The witness was asked as to whether the complainant had informed her as to when the alleged incident had taken place. The witness said: “She did not mention that Papa did it in the night. When I took her for a bath then I knew it had happened in the night”.
(xix) The witness said that she knew this because the blood stain on the panty was dry. The witness confirmed that she assumed because of the dry blood stains on the panty that the alleged incident had happened the previous night.
(xx) When asked as to how she knows that the complainant was wearing the same panty the night before, the witness said: “She is small. I bath her and I change her clothes. She cannot do it herself”.
(xxi) The witness was cross-examined at length by the defence.
(xxii) The witness agreed that she had not informed the accused about her other three children (who were staying with her first husband in Suva). She admitted that she used to go to Suva frequently to attend to a Child Maintenance case filed by her first husband. She further admitted that she had not informed the accused about the Child Maintenance case until he had asked her for the reasons for her frequent travel to Suva.
(xxiii) It was suggested to the witness that when the accused had found out about this case, he had clearly told her that he will not support her in terms of the Child Maintenance case. The witness denied this suggestion.
(xxiv) It was further suggested to the witness that when the accused had refused to help her with the Child Maintenance case, she had got angry with him. It was also suggested that for this reason, she used to get angry with him over petty issues. The witness denied these suggestions.
(xxv) It was suggested to the witness that the complainant used to develop infection in her private area prior to the alleged incident. The witness said: “When I came to Ritesh’s place then like pus and water were coming out from her vagina. I also showed it to Ritesh that we should take her to the doctor and he said it will be fine later on. I also mentioned this to my sister and mother about this. It was also paining”. However, the witness said that she did not take the complainant to the hospital at any time for treatment.
(xxvi) The witness further testified that whenever she took the complainant for a shower, the complainant used to complain about having pain in her vagina and stomach.
(xxvii) The witness denied applying oil on the complainant’s private part on seeing the blood stains on her panty. She said she didn’t do anything but called her sister and put the phone camera for her sister see.
(xxviii) It was suggested to the witness that the complainant had testified that her mother had put oil on her vagina. The witness said: “On the 2^nd day after bathing (the complainant), I put the oil as every time she used to complain that she has stomach pain and then she starts bleeding. Since we came to Maro, Sigatoka, R has been complaining about stomach pain and vagina pain. After marriage when I came (to reside at Maro, Sigatoka) - first time she had infection. In Suva I never took her to hospital”.
(xxix) Later in her cross-examination the witness clarified that by the 2^nd day she meant the day after the infection was detected the first time. She confirmed that on that occasion she had put oil on the complainant’s vagina.
(xxx) The witness further testified that she and the accused moved to Sigatoka on 14 February 2021. Therefore, she had noticed the infection in the complainant’s private area (the pus and water) the very next day.
(xxxi) The witness agreed that when she moved in with the accused, she got an agreement done through a lawyer. She said that it was her mother who wanted such an agreement. As per the agreement, it is stated that if the accused leaves her he has to pay her $10,000.00.
(xxxii) The witness said that she had moved in with her current partner only on 1 April this year. It was suggested to her that she moved in with her new partner while the accused was in remand. It was further suggested to her that she had started to talk to her new partner whilst she was with the accused. The witness denied these suggestions.
(xxxiii) It was suggested to the witness that she had met the accused’s father whilst the accused was in remand and that she had demanded $10,000.00 from him to withdraw this case. The witness denied this suggestion.
(xxxiv) The witness denied that she shouts (scolds) and hits the complainant in a means to discipline her and that she has done so in the presence of the accused.
(xxxv) With regard to the alleged incident of 29 May 2022, the witness said that she was sleeping in the room with her daughter. The accused had come to the room and told her to give the complainant to him so that he will make her sleep in the sitting room. The accused was watching TV and at the same time playing loud music and then the complainant had hit him. When she had asked the accused why the complainant had hit him he had not said anything. Thereafter, the witness had taken the complainant and put her to bed.
(xxxvi) The witness clarified that she did not see the complainant hit the accused. However, the accused had told her that the complainant had hit him. She had asked the accused if he had done something to the complainant but the accused had not said anything.
(xxxi) The Defence highlighted the following omissions in the testimony given in Court by the witness vis a vis her statement made to the Police on 31 May 2022:

1. Although in her testimony in Court the witness had stated that the accused had come to the room and told her to give the complainant to him so that he will make her sleep in the sitting room, she had made no mention of this fact in her statement made to the police.
2. Although in her testimony in Court the witness had stated that the accused had informed her that the complainant had hit him, she had made no mention of this fact in her statement made to the police.

(xxxvii) The witness testified (as even stated in her statement made to the Police), that at the time of the alleged incident the complainant was wearing ¾ pants, a panty (inside) and a red top. She specifically stated that the complainant does not wear dresses.
(xxxviii) It was suggested to the witness that whatever the complainant had told the Police was told to the complainant by the witness. She denied this suggestion.

(xxxix) It was suggested to the witness that since she wanted to move with her new partner, that is why she gave a false statement to the Police against the accused. It was also suggested that for the same reason she got the complainant (that she had coached the complainant) to give a false statement to the Police. The witness denied these suggestions.

(xl) It was further suggested to the witness that after she found out what the doctor had said, that is the time she started planning to get rid of the accused and that to fulfil that plan on 31 May 2022 she fabricated this allegation against the accused in a means to get rid of him. The witness denied these suggestions.
(xli) The witness said that she had met her current partner in May 2022. She said: “After the incident, Ritesh’s father was removing me out of the house. So this aunty and uncle gave me shelter..... I stayed with them for one week. Then I went to the Women’s Crisis Centre. We had nothing to eat, no water, no electricity. So the Women’s Crisis Centre asked me to look for a place”. So thereafter from Sigatoka, she had moved to Ba.
(xlii) The witness clarified that the first time she saw a blood stain (on the complainant’s panty) was at the time of this incident. On other occasions it used to be pus and watery substance on the vagina, but not blood. Some times when she bathes the complainant she used to see red marks (like blood) on the panty. She had been noticing the red marks on the complainant’s panty since 15 February 2021.
(xliii) In re-examination, the Learned State Counsel clarified from the witness certain answers given by her in cross-examination.

[26] Evidence of Dr. Shimal Sharma

(i) The Doctor testified that she is currently based at the Colonial War Memorial Hospital (CWM) as the Surgical Registrar specializing in general surgeries. She is 29 years of age.

• (ii) She had graduated with an MBBS Degree from the Fiji School of Medicine in 2019. She had done her internship at CWM for 1 year and then was a General Practitioner at Nadi Hospital for 3 years. Since 2023 she is serving at the CWM Hospital. She has 4 years’ experience as a Doctor.
• (iii) While at Nadi Hospital, she had come down to Sigatoka as a relief Doctor during the time of Covid for a period of 3 months.
• (iv) The witness confirmed that she had conducted the medical examination on the complainant, RAC at the Sigatoka District Hospital, on 31 May 2022, at 10.00 a.m. At the time of the examination, the complainant’s mother was present. The mother had given her consent to the doctor for conducting of the said medical examination. The Medical Examination Report was tendered to Court as Prosecution Exhibit PE2.
• (v) As to the initial impression of the person to be examined, column D11 it is recorded that the child was awake, alert and comfortable during the time of the examination. The child was able to explain what her grandfather did to her and where it happened when asked.
• (vi) The Doctor testified as to the specific medical findings as found in column D12 of the Medical Examination Report. The head, neck, chest, back, upper extremities (both hands) and lower extremities (both legs) were all unremarkable. Meaning there was no rash, trauma, lacerations or scratches. There was no medical abnormalities.
• (vii) Next she had examined the pelvic area. There was no active bleeding, no discharge and no masses (no lumps or cysts). The hymen was perforated (meaning the hymen was not intact). There was a superficial abrasion between the 5.00 and 7.00 position, on the area of the labia (between the labia minora and the labia majora). The doctor said that since it is between the labias you could not just see the injury. You have to explore that area to see the injury.
• (viii) The doctor testified that it was possible for such an injury to be caused by blunt trauma. She said that penetration by a finger could be an example of blunt trauma.
• (ix) The doctor said that the appropriate age of the injury was 2 to 3 days (prior to the time of the examination).
• (x) The doctor testified as to the clinical management of the patient as depicted in column D15. She stated that she had transferred the complainant to the Lautoka Hospital for further investigation on the same day.
  

[27] At the end of the prosecution case Court decided to call for the defence of the accused. The accused was then explained his legal rights. I explained to him that he could address Court by himself or his Counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. I explained to the accused that he need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.

[28] The accused exercised his right to remain silent.

Analysis

[29] As stated before, the prosecution, in support of their case, called the complainant (RAC), her mother Ashika Lata Chand and Dr. Shimal Sharma. The accused exercised his right to remain silent.

[30] The burden of proving each ingredient of the charge rests entirely and exclusively on the prosecution and the burden of proof is beyond a reasonable doubt. Therefore, it is incumbent on the prosecution to prove all the elements of the charge beyond reasonable doubt. I have made reference to the elements that the prosecution has to prove at paragraph 9 of this judgment.

[31] Accordingly, the prosecution has to establish beyond reasonable doubt that the accused, on 29 May 2022, at Maro, Sigatoka, penetrated the vagina of the complainant, with his finger, and at the time the complainant was a child under the age of 13 years.

[32] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, those facts are considered as proved beyond reasonable doubt.

[33] Based on the said admitted facts it is admitted that the accused is known to the complainant as he was in a de-facto relationship with her mother, Ashika Lata Chand. Therefore, the identity of the accused is not in dispute, as he was well known to the complainant (as he was her step-father). It is also admitted that the accused resided with the complainant and her mother at Maro, Sigatoka, at the time of the alleged offending. It is further admitted that the complainant was born on 30 November 2018, and at the time of the alleged offending was 3 years and 6 months old. Therefore, it is proved beyond reasonable doubt that the complainant was a child under the age of 13 years.

[34] Therefore, the primary issue of dispute in this case is the physical act, namely whether the accused penetrated the vagina of the complainant, with his finger.

[35] I have summarized the evidence of all witnesses led during the trial.

[36] In this case Court permitted an application made by the prosecution in terms of Section 134 of the Criminal Procedure Act, to tender the statement made by the complainant to the Police on 1 June 2022 as admissible evidence. The defence had no objection to this application.

[37] Accordingly, a copy of the statement made by the complainant to the Sigatoka Police on 1 June 2022 (hand written statement in the English Language) was tendered to Court as Prosecution Exhibit PE1.

[38] In terms of Section 134 (1) of the Criminal Procedure Act the contents of the statement is admissible as evidence to the like extent as oral evidence of the complainant.

[39] In addition, the complainant was examined-in-chief, cross-examined and re-examined in the usual manner by the Learned Counsel for the prosecution and defence.

[40] The complainant’s mother, Ashika Lata Chand, was the recent complaint witness. She testified as to what the complainant had told her on 30 May 2022, when she had taken the complainant for her shower and at the time she had seen stains like blood on the complainant’s panty. At that time the complainant had said that Papa did it and that Papa had poked the finger.

[41] The prosecution also led the evidence of Dr. Shimal Sharma. A copy of the Medical Examination Report pertaining to the medical examination conducted on the complainant, on 31 May 2022, at the Sigatoka Hospital, was tendered to Court as Prosecution Exhibit PE2.

[42] The accused totally denies all the allegations made against him by the complainant. The defence position is that the allegations made against him by the complainant are all false or fabricated and were instigated against him by the complainant’s mother, Ashika Lata Chand. The reasons given is that Ashika Lata Chand was already involved with her current partner while being with the accused and as such was wanting to get rid of the accused.

[43] Ashika Lata Chand stated that she had only met her current partner in May 2022, after the alleged incident had happened. However, the complainant testified that when she had gone to the Police to make a statement regarding this incident, she had gone with her mum, her new Papa and her grandpa. She specifically said grandma Aji’s Papa. This is clearly in reference to Ashika Lata Chand’s current partner. This testimony was not counted by the State. So it is clear from this testimony that even at the time of the alleged incident Ashika Lata Chand was in contact with her current partner, although she was trying to conceal this fact from Court.

[44] Furthermore, Ashika Lata Chand testified as follows: “After the incident, Ritesh’s father was removing me out of the house. So this aunty and uncle gave me shelter..... I stayed with them (meaning at Ritesh’s place) for one week. Then I went to the Women’s Crisis Centre. We had nothing to eat, no water, no electricity. So the Women’s Crisis Centre asked me to look for a place”. So thereafter she had moved from Sigatoka to Ba.

[45] It is quite strange for a person who said in evidence that she does not know much about Sigatoka (since she did not go out very often), to have found an aunty and uncle (which is a reference to her current partner’s parents), who were residing in Ba, within one week of the alleged incident. In my opinion, this is highly unlikely, and is further proof that Ashika Lata Chand was in contact with her current partner before the alleged incident or at the time of the alleged incident.

[46] The defence position is that Ashika Lata Chand coached her daughter to falsely implicate the accused in this matter. Ashika Lata Chand denied this suggestion. However, it must be borne in mind that on the day the complainant testified in Court, prior to the luncheon adjournment, she refused to identify the accused. This may have been for various reasons, including fear or intimidation. However, soon after the luncheon adjournment she readily identified the accused in the dock as Ritesh her step-father.

[47] What concerns Court is what the complainant stated at the time. She said that she had her lunch with her mother and the mother’s current partner. While having lunch her mother had told her to identify the accused and see that he is locked up. This is clearly influence used by the mother on the complainant, even while the trial was going on. If the complainant’s mother was capable of influencing the complainant even during the course of the trial, it is quite probable that she could have influenced the complainant to make these false allegations against the accused. She had a motive to do so as well. This is consistent with defence position that the complainant had been coached by her mother to falsely implicate the accused.

[48] Another matter of concern is that the complainant testified that at the time of the alleged incident, she was wearing a panty and a diaper. Therefore, for the accused to penetrate her vagina, he would have to do so by putting his finger not only through the panty but through her diaper as well.

[49] The main evidence in this case is that, the complainant’s mother had detected stains like blood on the complainant’s panty at the time she was taking the complainant for a shower. The mother had detected this over 12 hours after the alleged incident had taken place. In any event, reasonable doubt arises as to how stains like blood could be seen on the complainant’s panty, since she said she was wearing a diaper. If at all the blood stains should have been on the diaper at the time and not on the panty. May be if the bleeding was continuous, then the blood stains could have come to the panty once the diaper was removed. However, there is no such evidence before me.

[50] Added to this, Ashika Lata Chand testified that the complainant had been having an infection in her vaginal area for over one year. According to her she and the accused had moved to Sigatoka on 14 February 2021. She said she had noticed the infection in the complainant’s private area (for the first time) the very next day-which would have been the 15 February 2021.

[51] Therefore, Ashika Lata Chand’s testimony is that she had seen pus and watery substance on the vagina of the complainant on previous occasions and that the complainant used to complain about having pain in her vagina and stomach on previous occasions as well. Ashika Lata Chand also stated in her evidence: “.......every time she used to complain that she has a stomach pain and then she starts bleeding”.

[52] She later clarified that the first time she saw a blood stain (on the complainant’s panty) was at the time of this incident. On other occasions it used to be pus and watery substance on the vagina, but not blood. Some times when she bathes the complainant she used to see red marks (like blood) on the panty. She had been noticing the red marks on the complainant’s panty since 15 February 2021.

[53] In my opinion, all the above factors create more than a reasonable doubt in the prosecution’s case. The benefit of such doubt should necessarily be given in favour of the accused.

[54] For the aforesaid reasons, it is my opinion that the prosecution has failed to prove the charge of Rape against the accused beyond reasonable doubt.

[55] In the circumstances, I find the accused not guilty of the charge of Rape with which he is charged.

[56] Accordingly, I acquit the accused of the charge of Rape.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT LAUTOKA
Dated this 29^th Day of September 2023

Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.

Solicitors for the Accused: Office of the Legal Aid Commission, Lautoka.