Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Kumar [2012] FJMC 250; Criminal Case 613.2007 (13 July 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 613/07

BETWEEN

THE STATE

AND

SATEN KUMAR

JUDGEMENT

1. The accused is charged with one count of defilement of girl between 13 and 16 years of age. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Defilement of girl between 13 and 16 years of age contrary to section 156(1)(a) of the Penal Code.

Particulars of offence

Saten Kumar on the 11th day of August 2007 at Lautoka in the Western Division had unlawful carnal knowledge of the victim a girl being aged 15 years and 3 months.

2. At the very out set I decide to suppress the names of the victim and the Prosecution witnesses as the victim was 15 years old at the time of the incident. She was 19 years when she was called to give evidence.
   
3. The alleged offence has happened on the 11th August 2007 and the case was taken up for hearing on the 15th September 2011. The Prosecution was conducted by a Police Prosecutor and the accused was represented by a Legal Aid Counsel. The prosecution called three witnesses and the accused remained silence. The trial was held before another Magistrate and the parties agreed to get a judgement on the same evidence already led, as the Magistrate who heard the trial is no more in the judiciary of Fiji.
   
4. Section 156 of the Penal Code reads as follows;
   

156.-(1) Any person who-

(a) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years;

is guilty of a misdemeanour, and is liable to imprisonment for [ten years], with or without corporal punishment:

Provided that it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the court before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

(2) No prosecution shall be commenced for an offence under paragraph (a) of subsection (1) more than twelve months after the commission of the offence.

(3) It is no defence to any charge under paragraph (a) of subsection (1) to prove that the girl consented to the act.

5. The victim gave evidence that on the 11th August 2007 the accused took her to a room in Lautoka Hotel. She said that they stayed the night there and the accused had sexual intercourse with her. The victim further said that she met the accused six months prior to the alleged incident and they spoke over the phone and met each other many times. The victim tendered her birth certificate to confirm that she was 15 years old when the incident happened.
   
6. In this case the accused did not dispute that he had sexual intercourse with the victim. Further there was no dispute with regard to the identity of the accused, date and place of the alleged incident. The only issue the Court has to consider is the age of the victim at the time the alleged offence was committed.
   
7. The proviso to Section 156 of the Penal Code provides that "it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the court before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years."
   
8. The victim said that she told the Accused her age as 15 years. She further said that she was a form 4 student at the time of the incident and they sometimes met before she goes to school in the morning. She also said that after the alleged incident the accused told her to tell her parents that he knew her age as 18 years. In reply to cross examination the victim said that the accused asked her age on the first date and she told him that she is 15 years on the first time they met. The following are some excerpts of the cross examination on the issue of age;
   

Q: I put it to you that you told accused that you will be 18 years in June 2007?

A: No

Q: You have been going out for 6 months with the accused before the incident?

A: Yes.

Q: Would you agree with me most of the times you met on Saturdays?

A: Some times on Saturdays, some times before I go to school before school starts.

Q: You told the accused you were form 7?

A: I told form 4 student.

9. Although the victim was cross examined at length the Defence could not challenge the credibility of the victim. Further the Defence could not create any doubt that the accused may have believed that the victim was over 16 years. The victim's evidence remains unshaken and the Defence failed in attacking her credibility.
   
10. I have considered the evidence given by the father of the victim. He corroborated evidence given by the victim. He said that he reported to the Police when his daughter did not return home in the evening. Further he said that he knows the accused personally. The investigating officer gave evidence that first it was reported that the complainant has gone missing. She said that later it was transpired that the victim had gone with the accused. The medical report of the victim was tendered as Prosecution Exhibit 2. As per the medical report the doctor has noted that " no hymen". Further it is recorded that no evidence of forced vaginal penetration and possible vaginal infection is present.
    
11. It appears that the accused had been 34 years and the victim had been 15 years when the alleged offence was committed. There is an age gap of 19 years. The victim clearly gave evidence that some times she met the accused before she goes to school in the morning. There was no at least a reasonable suggestion put forward by the Defence as to how the accused believed, if he did so, that the victim was over 16. The victim reiterated that the accused was told about her age on the first date itself. The victim said that the accused told her to tell her parents that he knew her age as 18 years. The Defence did not dispute that evidence at any time.
    
12. The accused did not give evidence or did not call any witnesses. Although the accused need not prove his innocence and the burden of proof lies on the Prosecution, the accused could create a doubt in the Prosecution case by giving evidence in view of the statutory defence. However in absence of such explanation by the accused there is nothing before the Court at least slightly suggest that the accused had reasonable cause to believe and did in fact believed that the victim is over 16 years of age.
    
13. I have considered the evidence adduced by the Prosecution. I am satisfied that the Prosecution has proved the elements of the offence beyond reasonable doubt.
    
14. Accordingly I find the accused guilty and convict him for the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

13.07.2012