Magistrates Court of Fiji

(iii) had sexual intercourse

(iv) with the female complainant

(v) who was under 13 years.

The second of the alternative count to defilement is of indecent assault.

The Issues not in Dispute
From the proceedings this Court finds that the following are not in dispute:

(a) The identification of the accused, that he is the one and the same person as per the charge and is Richard Kashmir Kumar.

(b) That the complainant was 12 years old (DOB- 6/6/2009) in 2009. The Birth Certificate of the complainant was tendered and admitted in evidence.

(c) The complainant was medically examined by a Doctor on 2nd June 2010.

The Prosecution's Case
The victim's evidence is that she recalls what happened in June 2009. Her brother was sick. Her mother, neighbor's (Richard - the accused's) wife took her brother to hospital. Complainant slept at accused's house with her elder sister that night. When she slept the accused entered the room and started touching her and told her that he wanted to sleep with her. She replied no. He then told her if she did not he will sleep with the elder sister. Accused wanted to have sex. Accused then went to the sitting room. She slept. Later accused came back to the bedroom. She was sleeping. Accused then held her right hand tightly and dragged her to the sitting room. He again asked her if she wanted to sleep with him. She replied no. She was afraid. She shrugged him off and came back to the room. She went to sleep. Later she realized somebody touching her body. She opened her eyes and saw Richard on top of her. He started undressing her. He inserted his penis in her vagina. It was continuous insertion of penis of the accused into her vagina. It went on for 10 to 15 minutes. He sucked her breasts and kissed her.

While the accused was on top the complainant he told the complainant that if his wife came suddenly she should not tell her. The wife returned. He stopped when his wife came back. She called him "honey". The accused told the complainant to dress up and not to say a word. Accused went to another room and opened the window and talked to his wife. He told his wife that the complainant's mother is alone and that she should stay with her for the night. The accused's wife went and stayed at the complainants place. Living the accused and the complainant at the accused's house. The complainant went home the next day. She did not tell anyone as she was scared.

Sometime later the complainant was asked by her mother to take benzene light to the accused. The complainant was at the entrance of the accused's house. He pushed his hands on her breasts and squeezed her breasts. He put his hands on her private parts. She felt uncomfortable.

On another occasion the mother of the complainant sent her to the accused with a radio to the accused to fix it. The accused had asked the complainant's mum to send the radio with the complainant. Her mum had told her not to go inside the house. At the accused's house, the accused told the complainant to sit on the doorway. He came near her and started to touch her. She did not like it. The accused then pulled her by the hands and took her inside. He started kissing her and sucked her breasts. He took off her clothes and put his penis in her vagina. At that moment her mum called and the accused told her to dress up. It lasted 10 minutes. The complainant did not tell anyone as she was threatened.

In cross-examination the complainant told the Court that the accused's wife made a complaint. She also said she had chance to go and sleep with her sister. But she did not do that. She also agreed that a virgin cannot easily have sex. On 1st occasion will be painful. She stated that the penis did not go deep inside and the accused had held her mouth and had threatened her. She told the Court that she was scared to report rape when the report of the accused's wife was made. The accused's wife had brought up the issue of rape by saying that the complainant was "finished" by her husband. The police and her parents asked her about it. She did not bring it up as she was afraid.

In re-examination she told the Court that she told her dad of the rape and he took her to police.

The Doctor who gave evidence in Court was not the one who had examined the complainant. The examining Doctor was not in the Country. The professional opinion of the Doctor who gave evidence in Court was that from perusing the report he could say that the complainants vaginal opening was large and the hymen ring was torn. Which indicated that the vagina had been penetrated. The victim according to the Doctor was 12 years old and the injuries were significant. The Doctor told the Court that there was no physical injuries on the body of the complainant when she was examined. This Court also noted the contents of the medical report which was tendered in Court. The history related to the Doctor was that the complainant was sexually assaulted on 7 occasions by the alleged man. The incidents involved vaginal penetration with finger and penis. The summary and conclusion of the Doctor was "sexual assault victim with obvious signs of vaginal penetration – hymen not intact."

The complainant's mother also gave evidence. She told the Court that after an argument with the accused's wife, the accused's wife said the accused had "finished" the complainant. She said she was a witness to it. In addition to other evidence the mother of the complainant told the court that the complainant was normal one day after the alleged incident and that when the daughter went on the second occasion the accused's wife was there. She also told the Court that when the issue came to light and upon initial inquiry the complainant told the police "no" when rape issue was brought up.

The Accused's Case
On 22nd July 2013, after the accused elected Magistrate's Court trial the charges were put to the accused, in the presence of his counsel. He pleaded not guilty to the rape charge, and not guilty to the alternative charge of defilement and indecent assault. In other words, he denied the allegations against him. At the end of the prosecution's case, a prima facie case was found against the accused, wherein he was put to his defence. He chose to give sworn evidence, in his defence. No other witnesses were called by the defence.

The accused told the Court that the allegations are lies. The complainant's house was 3½ metres from his house. When his house was burnt the complainant's family did not want him to build in the area, he further stated that the problem is not his and he has been there for a long time. His wife's case has been finalized. The complainant's had told him that they will complain about him and he was to give money or the house. The girls slept in his room. The room was secure, had doors and could be tower bolted from inside. His wife had told the children when she was leaving to lock doors from inside. He could not go in. He denied rape or any wrong doing. He admitted fixing the benzene light and the radio for the complainant's.

Analysis Of The Evidence
This Court has noted the law and all the evidence given in this case. The identification, time and place of the charges are not an issue in this case. The issue for this Court to determine is whether the accused raped the complainant, or defiled and indecently assaulted her.

At the time the alleged incidents arose, the complainant was 12 years old and she resided with her parents and siblings at Muslim League Settlement in Nabua. The Accused was the immediate neighbor of the complainant. The age of the complainant at the time of the alleged incidents is not in dispute. The issue is whether the alleged offences were in fact committed by the Accused. The Accused denies the allegations of rape, defilement and indecent asssault.

The prosecution case substantially rests on the acceptance of the complainant's evidence as true. The complainant's evi on the charge of rape is the accused for the the first incident took her to a to another room and he penetrated her vagina with his penis. He had covered her mouth with his hand. For fear of her mother and the reason of threat by the accused she did no relay it to anyone. The accused had further indecently assaulted her when she went later and also raped her when she took the radio. From the evidence before it this Court finds that the complainant did not consent to sex. She was threatened, she was a 12 year old girl at the time of the incident. The accused forced himself on her. The accused on the occasions he had sex with the complainant had used force. He did not give respect to the complainant. He went to her initially. He tried to persuade her to have sex. She refused. He took her from one room to another and then he had sex with her against her wish.

One of the other crucial issues this Court notes is this case is that the mother of the complainant stated in Court that her daughter was normal the day after the alleged rape. The general perception and thought in the event of a rape is that the victim will display abnormal behavior. In this case which is the rape of a child of 12 years it is generally expected that the child will immediately display emotions and behavioral changes which must be immediately picked up by close ones. In this case the mother of the complainant. The issue of the child being normal in the assessment of the mother is not being over-looked by this Court. In the same analysis this Court notes from the complainants evidence that she feared her mother greatly and was mostly beaten by her. She did not confide in her mother. This might indicate why the mother did not notice anything. The other issue which this Court has concerns of is that the mother did not get the message when her daughter told her she would not go to Richard's place. Despite her child's insistence that she would not go to the accused's place the victim was continuously sent by the mother. The mother did not pick up the signal from her daughter the reason or reasons for the refusal by her daughter not to go to the accused's place. This Court the issue of the mother noting her daughter was normal.

The defence case is that the allegations were fabricated by the complainant and her family and had arisen after the altercation between the complainant's mother and the accused's wife. According to the defence the complainant did not report to the police while she was with the police when they were dealing with other reports.

This Court is clear in its mind and convinced that the complainant gave truthful evidence. The Complainant had great difficulty in giving her evidence. She was clearly distressed at times while giving evidence. The pain and trauma of the complainant showed on her face when she narrated the episode of rape. The distress the Court noted was not as if she was making things up, but in relaying the matter to Court. She did not make anything up. This Court believes what she narrated in Court about the rape and the acts of indecency that the accused carried out with her. The veracity of her evidence is not affected by the lack of early complaint and any inconsistencies that exist with other witnesses. This Court having noted the demeanor of the complainant in Court having regard to her age at the hearing and her age at the time of the alleged offending and the evidence she gave in Court believes her version of events. There are no doubts in this Courts mind on what the complainant told this court was the truth. It was not made up by her or she framed the accused to exact any revenge, even on anyone else's word or asking.

This Court is satisfied beyond reasonable doubt that the Accused had unlawful sexual intercourse with the complainant without her consent between 1st day of June and the 30th day of June 2009, and he knew she did not consent. The complainant did not consent to the unlawful sexual intercourse. This Court finds that accused raped her and he did so on more than one occasion. This Court finds the Accused guilty of rape as charged on Co and thnd this Court convicts him accordingly.

Chaitanya Lakshman
Resident Magistrate

14th November 2014