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State v Kumar [2014] FJMC 173; Criminal Case 378.2013 (11 August 2014)

IN THE MAGISTRATE’S COURT AT LAUTOKA

Criminal Case No378/2013

BETWEEN

THE STATE

AND

SANJEET SHALVIN KUMAR

For Prosecution: PC/Sharma
For Defense: Represented by Ms Prakash – Legal Aid Commission

Date of Judgment: 11th of August 2014

JUDGEMENT

The Accused has been charged with the following offence under the Crimes Decree 2009 No. 44 of 2009:

“Statement of Offence”
ABDUCTION OF PERSON UNDER EIGHTEEN YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence
SanjeetShalvin Kumar between 1st day of June 2012 and 30th day of June 2012 at Lautoka in the Western Division, unlawfully took away MonishaMezabi, an unmarried girl between 16 years and 10 months, out of the possession and against the will of her mother namely Tharimun Bibi who had the lawful care of the said MonishaMehzabi with intent to have carnal knowledge.

THE LAW

1. Section 211 [1] of the Crimes Decree reads as follows;
   

1) A person commits a summary offence if he or she, with intent that any unmarried person under theage of 18 years shall be unlawfully and carnally known by any person (whether such carnal knowledge is intended to be with any particular person or generally), takes or causes to be taken the person out of the possession and against the will of his or her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.

Penalty — Imprisonment for 5 years.

According to the section the elements that the prosecution has to prove are that;

[a] the accused

[b]with an intention to have

[c]unlawful carnal knowledge

[d]of a person who is unmarried and below the age of 18

[e] takes away without the will of that person’s

[f] Father, mother guardian or any other person having lawful care or charge of that person under 18.

According to section 57(1) e Criecree&cree the onhe onus is in tosecutsecution to prove the aforesaid elements and in section 58 (1) particularly says that burden of proving of said elements beyond reasonable doubtlso i respility oity of thef the prosecution:-

In Milb>Miller V Minister Of Pension ] 2 AER Lord Dord Denning explained the 'proof beyond reasonablet'oubt' as 'That degree is well settled It need not reach certainty, but it must a higree of prlity. Proof beyond read reasonablenable doub doubt does not mean proof beyond the shadow of the&doubt. T160;The luld fail ttepro#160;the&#1he community if it add fancifunciful possibilities to defleceflect the course of&#160ice. If#160;n160;nce istrong against a man as to leave only anly a remote possibility in his favour, whr, which cich can be dismissed with the sentence "of&#160se it is possible but not in the;least probable",ble", te", the case is proved beyond reasonable doubt, but nothing short of thal suffice.

T

Therefore it should be noted that proving beyond reasonable doubt is somewhat proving not beyon doubt proving according to a reasonable prudent man tman think that the facts before court have have been proved with no reasonable doubt.

Case for the prosecution
First prosecution called the evidence of the mother of the victim. Her evidence was that the victim is the youngest out of two children she has from her marriage. The witness substantiated that by tendering victim’s birth certificate as PEX 2. According PEX2 the date of birth of the victim is 24.10.1995.

The witness stated that at the month of June the victim was 16 years and 7 months and was schooling at Lautoka Muslim College in Form 5.

She stated that in the month of December 2012 she went with the victim to visit her mother in Raviravi. When her mother was doing a massage on the victim as she complained having a back pain then the witness stated that her mother told that the victim was pregnant. Then she stated that after informing her husband the victim was pregnant they took the victim to the police to lodge a complainant.

Then the witness stated that when she questioned the victim she was told that a person called Divnesh got friends with her sometime back took her to Saweni Beach. And the witness said that she never permitted anybody take the victim out of her possession.

At the cross examination she admitted that she nothing knew about said Divnesh and the victim was really scared when the witness came to know that she was pregnant.

After the aforesaid evidence the prosecution then called the victim.

During the evidence in chief of following evidence were elicited.

The witness was a form 5 student at Lautoka Muslim School during the time of the incident. She used to travel from home to school by bus. She had travelled alone. According the witness during the month of February she had received a missed call from 9658089. Then she had called back and identified a person by a name of Divnes has the person who gave missed call.
According to the witness then both have exchanged the details as the said Divnesh had used to call her in nights often. She stated that she also used to make calls to him.

The witness said in the month June 2012 he met that person for the second time at the bus stand where the Ba busses are stopped. The witness said the place was arranged by her when they talked over the phone.

The first meeting was also on a school day at the bus stand and the witness said on that day that person told the victim that he wanted to meet her after 2-3 weeks and thereby the second meeting was arranged two or three weeks after the first meeting.

She said that on the second day also she went in school uniform as it was a week day. Then she stated that, Divnesh having rented a car she was taken to the marine drive. There she said that she changed her uniform and wore an out fitting which she brought from home. Then the victim stated that the said person took her to the Saweni Beach.

According to her both have reached there around 9.00am and after the car was parked at the beach that person had started kissing her and fondling her. That was at the back seat of the car. Thereafter she said that here moved her clothes. The victim stated that Divnesh also removed his clothes and indulged in sex with her. By her wording the witness said that then that person dropped his water into her private part.

According to the witness that person had had sex with the victim for thrice till 3.00 pm. Then she stated that she was brought back and dropped near her place. She stated that she was dropped near Fiji National University. She stated that on that day she pretended her parents that she went to school.

During evidence the witness identified the said Divnesh as the accused in court.

The witness then said again in the month of August the accused came to see her. That was to a park near her home. On that day the accused had come around 10-11 am and he had spent ½ hour with the victim. The victim said that the accused ask on that day whether she had her menstruation to which she gave positive answer.

The victim stated that again after three day of the previous meeting she met the accused at the bus halt. According to the victim she was sitting in a bus that time and because of that she was unable to talk much to the accused as she was with the mother.

But she stated that both used to call at nights often.

However the victim stated that in the month of August as her brother and mother suspected that she was communicating with someone her mobile was sized. And in the month of December at her grandmothers place it was found that she was pregnant. The victim said that then she was taken to Ba police station from there then to the Lautoka police. She further stated that she was produced for a medical examination and that medical report was identified as PEX1.

Apart from the first day the victim stated that then she had to go to the police for 2-3 times. Accordingly she stated that one day there was an Identification parade and she was able to identify the accused. She said that on that day she came to know that his name is Sanjeet and not Divnesh. According to the victim her relationship with the accused had lasted from February to August.

She stated that on 24.02.2013 she gave birth to the child and now she and her baby are living with her mother.

At the cross examination she admitted to the following evidence.

That she came to know about the accused in February 2012 and she was not communicated with any other boy during that period. The accused had told her that he is from Ba. And further admitted she told the accused her full name.

She denied the suggestion by the accused that she first met the accused in the month of October 2012. She admitted that the car in issue was touring car and she went with the accused voluntarily.

According to her she had changed clothes as she did not want to get caught to her parents. And after the aforesaid incident she did not tell that to any of her family member. She further stated that although she resides with her mother from the birth she had not had a close relationship with her. According to her the pregnancy was concealed as she was not aware that she was pregnant by that time.

She further stated that she was very scared when her family got to know that she was pregnant. And she admitted that she told the doctor the name of the accused.

And further she admitted that she explained the accused as a person having short hair and a tattoo and tall. And she said that she noticed the tattoo in one of his hands.

She further stated as she had met the accused she was able to identify the accused at the parade. And she had met the accused more than once. Furthermore she stated that her first statement to the police was on 10.12.2012 and the second statement was on 13.03.2013.

She stated that it was only ½ hour time spent to record the first statement and she was unable to tell everything. In her second statement she stated that as she was on pain after stiches of delivery she could not sit properly when she gave the second statement.

It was suggested that in her statement she had not mentioned that she told the accused her date of birth the witness denying that statement to court stated that she told the accused her date of birth.

When she further suggested it was not written down in her statement the witness said that she told the officer who recorded the statement. But she admitted in court that in her statement she told the police that she met the accused at the post office and she had sexual inter course twice.

The witness denied all suggestions by the accused that the accused came to meet her in the month of October and that meeting was last for 15-20 minutes and thereafter accused told her to go away.

The witness answering certain questions about her menstruation stated that there was some bleeding from the month of July and then during October to December she thought that bleeding may have stopped due to thyroxicine she has had. And she admitted during cross examination she takes medicine for thyroxicine and blood tests done for thyroxin.

She admitted that she told the accused pregnant at the police station when police allow to talk to the accused. Before that she did not tell him by that time as she did not have a mobile phone.

In the re-examination the witness admitted that since September she missed her menstruation.

Then the statement of PC Keshwan Naidu was tendered as PEX3 with the consent of the accused in regards to holding of the identification parade of the accused.

After that the prosecution called WPC Irene 3838 to give evidence according to that witness she had conducted the caution interview of the accused. It was on 13.03.2014 the witness explained the manner in which the interview conducted and then tendered it as exhibit 4.

At the cross examination the witness admitted to the following evidence. That she requested the victim for a medical exam. In that referral the name of the accused was not mentioned.

There after prosecution closed their case. As there was a case to answer by the accused his rights were explained in terms of section 179 of the criminal procedure decree. The accused elected to give evidence and called witnesses.

The accused gave following evidence.

The accused stated that he was a labour and living with his parents. He admitted that he knew the victim and he only met the victim in the month of October only for 10 minutes at the bus stand. According to him on that day he had come to town with his employer and from there he went to meet the victim.

The accused stated at the first sight since she appeared as Muslim girl by her clothes he gave up her as he went to see whether he can settle down. He stated that before that he did not know that the victim was Muslim. He further stated that many times over the phone he stated the victim not to call him and that was before meeting. He further stated that after he met her he told the victim that the victim had told lies to him.

According to him that was a week end. He had come in a van as during the period of June 2012 he worked in a pineapple farm. He stated that he had to work from Monday to Friday. And further stated that he did not know how to drive and he does not have a driving license.

He stated that he was arrested at the farm. He said that what the police officer wrote was unaware to him. He said that he has to be in the cell whole night. He said that he was not given food and there were lots of mosquitoes. He stated that in his interview he said that he came to Lautoka by bus as the police ask which transportation he used.

Then the accused was subjected to the cross examination he admitted that 9658089 was his phone number. And he had been talking to the victim using that number. He denied that the conversations from February 2012 and she ever said that she was schooling.

He admitted that he intended to settle with her but when he met her as she was lying he gave up. The accused denied that he had sex with her. And he admitted that he was identified at the parade. He further stated that what he mentioned in the interview was half true and half is incorrect.

Then accused called the evidence of his employer. He admitted that in the month of October the accused accompanied him to the town in the van. He went away for five minutes and came back. According to the witness the accused had accompanied him one time to the market.

And he admitted that he worked under him from March 2012 to October 2012. In June 2012 the witness stated that he did not accompany the accused to come to the market.
In the cross examination the witness admitted that the accused worked for him for the whole year. 6 months in pineapple farm and 6 months in harvest cane. But he admitted that apart from his work where the accused had been.

Then the accused called Mr Rajeshwar Parasad. He confirmed that he knows the accused since birth. He confirmed that accused worked in his farm in June 2012. Work was from Monday to Friday and the time was 6am-6.30pm.During that period he was not on leave and the witness said that he used to come to market with his son.

At the cross examination he admitted that the accused came to town while he was at work in the morning and getting back at the afternoon. He further admitted that where the accused visited from his work.

After the aforesaid evidence then the accused also closed the case.

Analysis
As mentioned above it is incumbent that the prosecution has to prove the following elements against the accused to bring him guilty to the charge.

[a] the accused

[b]with an intention to have

[c] unlawful carnal knowledge

[d]of a person who is unmarried and below the age of 18

[e] Takes away without the will of that person’s

[f] Father, mother guardian or any other person having lawful care or charge of that person under 18.

The version of the prosecution is that the accused took away the victim who was 16 years and 7 months during the period of the incident that was in the months of June 2012 and had carnal knowledge of the victim against the will of her mother.

As oppose to the aforesaid contention the defense by the accused is a total denial. He vehemently denied that he committed any of the aforesaid acts neither against the victim no against her mother.

Therefore the issue before this court is to consider the truthfulness of the story related by the prosecution before this court.

As very correctly pointed out by the defense counsel in her written submission this court has to evaluate the evidence of the prosecution and the defense compliance with test of credibility set out in the State v Kamal reported in 2014 FJHC 8HAC 221.2011 dated 24.01.2014.

Accordingly the credibility of witness should be evaluated under following grounds

1. Test of means of opportunity.
2. Probability and improbability.
3. Belatedness.
4. Spontaneity.
5. Consistency.
   

Before evaluating the aforesaid tests in regards to the credibility of both sides to the case it is important to note the intention of the law makers of including this nature of offences in the Crimes Decree. It is clear by the elements of this offence the offending is not against the victim but against the guardian by the accused. Because it is apparent by looking at the ingredients of the section that the law makers had thought fit that the children below the age of 18 who are unmarried do not really have the mental maturity or the perception to give consent to an act of sexual intercourse. And the children of that age category are not mindful of the gravity of the consequence attended upon the physical act of intercourse and therefore, the criminal law should provide the protection to those children by declaring that the act of intercourse per se whether there is consent or not constitute rape. And especially in these types of case voluntariness of the victim to offending acts is immaterial.

As perHer Ladyship Justice Shameem in Elia Donumainaisava V State[2001] HAA 32/01S 18 May 2001 observed that the offence of Defilement specifically designed for consensual sexual intercourse with girls under the age of consent has clearly designed to protect young girls, who have entered puberty and who are experiencocial and hormonal changes, from sexual exploitation. AlthoAlthough the charge in this case is not defilement I think the aforesaid observation is relevant to this category of offense as well.

In the case of Roshan Ali v. State[2003] HAA 8/02L 14 March 2003 it decided that the ingredient of ‘Takes’ does need not be by force, either actual or constructive and it is immaterial whether the girl consents or not:

In this case it is evident that the journey done by the victim in the month of June was totally against to the will of her mother.

The complainant’s evidence is sooner she came to light that her daughter was pregnant she stated that the same day the matter was reported to the police.

The victim also admitting the aforesaid evidence stated that on the same day her grandmother recovered that she was pregnant she stated that she was taken to the police and from there she was produced for a medical examination.

The victim admitted that she was not having a close relationship with the mother. She was really scared when parents came to know that she was pregnant. Further she stated that until she was told that she was pregnant she did not know whether she was pregnant or not. She explained the reasons about her menstruation. When prosecution suggested that she missed the menstruation from the month of July her answer was that there was some bleeding but it stopped from October to December as she thought that was due to her thyroxcine. At the re-examination the witness admitted that she stopped her menstruation at the month of September.

According to the marked medical report the victim was bearing a 28 week pregnancy on the date of the examination. That was on 11.12.2012.There was no dispute over the findings of the medical officer by the accused other than any name of accused was mentioned in the report as an assailant.

Thus I thought the opinion by the medical expert is vital. Therefore according to the doctor her pregnancy period started from the month of June. In her evidence she did not intentionally conceal her pregnancy as she was also unaware that she was pregnant. She was student of 16 years and 7 months by the month of June 2012 and therefor it is evident to court that the victim is not mature enough to identify her body changes correctly. Thus her evidence relating to her menstruation should be evaluated with that caution.

The accused also don’t deny that she stopped her menstruation in the month of July as it was suggested to the victim that her menstruation was stopped July. If the victim is deliberately wanted the accused to be fixed to this case I see no reason that her reluctance in admitting that her menstruation was stopped in July as suggested. Therefore I observed that the version by the victim in regards to her pregnancy is reliable.

With the aforesaid findings I am further satisfied belatedness of making a complaint to the police after 7 months after incident had plausibly explained to court and there is no belatedness in the complaint of this case as the victim properly explained in her evidence the reason for her to hide the sexual inter course she has had in the month of June 2012 to her parents. Because he evidence should evaluated with her educational level and her family back ground she shared with her mother by that time.

Accordingly having proved that the victim had been subjected to carnal knowledge knowing that she was unmarried 18 years girl against the will of the complainant by the prosecution the only element now left is whether it was done by the accused or not. Version of the prosecution is that it was by the accused and not by anyone else. In order to prove that fact the prosecution submitted the following evidence.

The victim stated that in the month of February she came to know about the accused coincidently as a result of a missed call. She stated that then she often communicated with the accused at nights and happened to exchange details. The victim stated that prior to the main incident in the month of June she met the accused 2-3 weeks prior on a request of him. The second meeting was afterwards at the bus halt that was also as arraigned prior, to substantiate that she stated that she brought out fit with her as she was in school uniform.

Then she stated that she went with the accused in a rent a car first to marine drive to change uniform and then to Saweni beach. She stated that there she was indulged in sex for thrice and then she was dropped at the FNU closer to her house.

After the aforesaid incident also the witness stated about two meetings of the accused that was in the month of August.

She stated that first day of her meeting after sex the accused asked whether she was pregnant to which she answered negative.

The above was crux of evidence but in the cross examination the accused was able to challenge only the following evidence.

1. Number of times she had sexual inter course with the accused as she admitted in her statement that she said to police that it was twice whereas in her evidence it was thrice.
2. The place where she dropped by the accused, at the evidence she stated that it was closer to FNU at the statement it was Natabua junction.
3. That she had not told police that she had met the accused prior to June 2012.
4. In her statement she stated that she met the accused in the post office but in court she admitted that was at the bus stand.
5. And the last menstruation was in September.
   

Before evaluating the aforesaid position I would like to observe the findings set in in the case of Chand v State [2013] FJHC 63; HAA022.2012 (22 February 2013)in that case His Lordship Gounder J that it is trite law that where a witness has made a statement which conflicted with his or her evidence, the court can only consider the evidence given on oath when considering guilt or innocence of an accused (Gyan Singh v Reginam [1963] 9 FLR 105; Hari Pal v Reginam [1968] 14 FLR 218; Bijai Prasad vReginam [1984] 30 FLR 13). The previous inconsistent statement is of a limited use. The previous inconsistent statement may be used to consider whether the witness is believable. In examining the suggested inconsistencies, the court must first determine whether there is one, and whether it is material and relevant or, on the other hand insignificant or irrelevant. If there is an inconsistency, it may lead the court to conclude that the witness is generally not to be relied upon; alternatively, that a part of the witness's evidence is inaccurate; or the court may accept the reason the witness has provided for the inconsistency and consider the witness to be reliable.

Now in regards to the aforesaid position the witness very clearly explained that her statement to the police was nearly ½ hour and her second statement was given even she cannot sit properly after the delivery.

The complainant stated the victim got really scared after they came to know she was pregnant and the same date she was brought to the police to lodge a complaint. Under those circumstances especially being a girl of 16 years suddenly aware that she was pregnant and the fact that the remote relationship with mother cannot discard when evaluating trust worthiness of her evidence. And also her mental situation sacredness and trauma she was undergoing at the time of the statements were made. That was the reason in brief she explained in other words that the statement to the police was not lasted long.

It is significant to note that her evidence was not in any way to fix the accused to this crimes as admitted that she went with the accused on her own volition and committed with her consent. She admitted that she brought out fittings and concealed the events from her parents until she got caught. Finally she even admitted having bleeding in the month of September.

Therefore it is incumbent that the victim was not concocting the story and evident that her reactions were completely normal. Her story is probable because her evidence really consists with the other prosecution witness.

The complainant admitted that the victim got really scared when this came to light. The medical evidence consists with the duration that the victim speaks of having sexual inter course with the victim. And the evidence of PC Naidu corroborates that the victim properly identified the accused.

She explained giving an answer to the defense that she was able to identify the accused due to prior meeting she has had with him and that was more than once. It is contested in the written submissions that the victim has failed to provide vital information about the accused that he has tattoo but nowhere in the submissions has mentioned how it relevant to the credibility of the victim. As stated in the above judgment it needed her to identify the accused who, she had met more than once and spent hours from 9 am-3 pm. On the other hand as she was giving a statement about a person she associated it is not vital to give all description of that person as she known him by name, telephone number and the area. And also inthe cross examination it was never challenged by the accused the manner on which the victim identified a person who she has met only for 5 minutes for months after the meeting in October as claimed by the accused.
With those reason I am satisfied that the evidence by the victim is consistent, probable, and spontaneous and corroborated with the other witnesses.

According to his Lordship Justice Gounder in the case of State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010) it is held that;
'Corroboration means some independent testimony which affects the accused by connecting him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also the accused committed it'

As oppose to the aforesaid version now the court has to evaluate the evidence by the accused in terms of the same test of credibility.

The accused defense as stated about is a total denial. However having taken that defense he brought two other witness to corroborate to court that he worked in a farm in the month of June from 6.am to 6.30 Monday to Friday.

Having brought aforesaid evidence he suggested to the victim that he only met the victim in the month of October 2012 and that was also only lasted for 10 minutes.

Therefore from the aforesaid evidence a doubt cast on the accused version as claimed by him whether he met the victim only on October. If so then it is questionable as to why then the he tried bringing witness to establish the defense of alibifor the month of June.

Therefore it is needed to observe whether the accused speaking of something mechanically created.

In his caution interview the accused had admitted that he went to see the victim in the bus on the date of the question.

Q 35 How you came to Lautoka?

A. In bus from Ba.

And he met the victim at shop near Natabua, and the time he met her around 12noon to 1pm.

Q 36 When you meet Monisha where you took her?

A. I only talk to her near the shop at Natabua.

Q 33 What was the time when you came to Lautoka to meet Monisha?

A. It was about 12pm to 1pm during the day.

And also admitted the said meeting was on a week day.

Q 34 Was it a week day or weekend?

A. It was a week day either Thursday or Friday.

And he further admitted that he can drive motor vehicle but does not have a driving license.

Q 48 Do you know how to drive a motor vehicle?

A. Yes.

Q 49 Do you know any private rental company?

A. No.

In regards his earning the accused admitted that he worked in his father's farm.

Q 14 What do you do to earn our living?

A. I am a farmer helping my father in the farm.

With the forgoing answers of the accused it is apparent that the two witnesses who brought to court to substantiate his position were after thought.

It is evident that the evidence by the accused was that on the day in question he had come to town with his employer and that was on a week end. He had comein a van and had met the victim at the Lautoka bus stop. He further stated in evidence that around 1pm he returned to Ba.

He in his evidence admitted that during in the month of June he worked in a pineapple farm belonging to one Rajnesh Prasad. He further admitted that he does not know how to drive and does not have a driving license. And stated that he has to work form Monday to Friday and according to second defense witness the working hours of the accused was 6am to 6.30 pm which was totally different to what he deposed under oath. Therefore it is apparent that as stated by Justice Gounder in the case of Chand v State [2013] FJHC 63; HAA022.2012 (22 February 2013) the court must first determine the inconsistencies are material and relevant or that inconsistency, may lead the court to conclude that the witness is generally not to be relied upon;

In addition to the aforesaid inconsistency finally the accused stated that the interview he given to the police was partly correct and partly incorrect. According to his reasons the he had to stay one night at the station, he was not given food and it was cold and there were mosquitoes.

Contrary what the accused stated in his evidence when the interviewing officer was given evidence the accused did not raise any of aforesaid single question with that witness. He did not confront the witness as to why he claimed that the caution interview should not be accepted as admissible evidence against him.

Therefore I am satisfied that the reasons given by the accused about the admissibility of his causation interview is baseless and unworthy of credit.

Therefore it is very much proven before this court that the story related by the accused in relating to the meeting up of the victim so as to his contents in the causation interview in regards to the day of meeting and manner in which the meeting was done was remarkably contradicted. The evidence of the accused inter se in consisted as well per say contradicted to the two of the witnesses he called as his witnesses to establish the defense of alibi.

Since it was only suggestion by the accused with forgoing reasons he set out in his evidence that he met the victim only in the month of October and denied that she was taken to Saweni Beach and denial that he indulged in sexual inter course against the will of the complainant this court find no substantive evidence to support his contention other than mere suggestions.

Since suggestions will not become evidence without substantive material to substantiate suggested position I disregard the position taken by the accused with the given reasons above.

I am satisfied the evidence by the victim is reliable and cogent. Therefore I accepted the version by the prosecution in the light of the test of credibility. Thus I satisfied that the prosecution was able to prove the aforesaid elements against the accused beyond reasonable doubt. Thus I found the accused guilty and convicted him as charge for the offence of Abduction Of Person Under Eighteen Years Of Age With Intent To Have Carnal Knowledge.

28 days to appeal.

LakminiGirihagama
Magistrate's CourtLautoka

11th August 2014