IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 226/2012

STATE

vs.

KRISHNEEL DUTT

Cpl Reddy for the prosecution 
Mr. Sunil Kumar for the accused 

JUDGMENT

[1]	The accused is charged in this Court for following offence. Since the victim is juvenile her name is suppressed and will be identified as Ms. DW in this judgment.

INDECENT ASSAULT: contrary to Section 212(1) of the Crimes Decree No. 44 of 2009.
Particulars of Offence

KRISHNEEL DUTT on the 16th day of January 2012 at Gaji Road, Samabula in the Central Division, unlawfully and indecently assaulted Ms. DW.

 [2]	The accused pleaded not guilty for the charge and the hearing was conducted on 01/08/2013, 19/08/2013 and 29/04/2014. During the hearing the prosecution called 03 witnesses and the accused gave evidence for the defence. 

[3]	At the end of the hearing both parties opted not to make any closing submissions and informed that they would rely on the evidence . 

SUMMARY OF EVIDENCE

THE PROSECUTION'S CASE

[4] 	PW1 was Ms. DW , the complainant in this case. She said during 2012 she was living in Samabulla with her parents and sisters and at that time she was in school. On that day she was feeling short breath and called her sister for help. The sister called the accused who was a relative of her and he came and massaged her back. Then he told to turn back and forcefully kissed her . PW1 forced him away from her. Later she told her mother about that and also reported the matter to the police. PW1 also identified the accused in the Court. In cross- examination she admitted that if the accused did not massage her she would have been in danger but again stated that the accused forcefully kissed her . She also said there were no injuries and the police did not take her to a doctor. The defence marked her statement as defence exhibit 01.

[5]	PW2 was WPC 3612 Moala , the charging officer. She charged the accused on 07/02/2012 and charge statement was marked as prosecution exhibit 01.

[6] PW3 was WPC 2380 Sanjita who recorded the statement of the complainant on 23/01/2012 . She said she received a report from the complainant about the alleged incident and recorded her statement around 11.30pm that day.

[7] After calling this witness the prosecution closed their case and the defence made an application for 'no case to answer' pursuant to section 179 of the Criminal Procedure Decree which was dismissed on 17th October 2013 . Thereafter the defence opted to give evidence.

THE DEFENCE'S CASE

[8] The accused said on that day he was in home and denied massaging or kissing the victim. In cross- examination also he said he just went to see what happened and denied touching her or massaging or kissing her.

[9] The defence without calling any other witnesses also closed the case after that and opted not to file closing submission .

THE LAW 

[10]	In Woolmington v DPP [1935] AC 462 it was held that 

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[11] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING , EVIDENCE AND PRACTICE 2010 page 542). 

[12]	In STATE v MAHENDRA PAL CHAUDHRY HAC 137 of 2010 in his summing up his Lordship Justice Madigan defined burden placed on the prosecution in the following manner:- 

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[13] The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree which states : 

"A person commits a summary offence if he or she unlawfully and indecently assaults any other person."

[14] In State v Augustine [2013] FJHC 418; HAC300.2011S his Lordship Justice Temo identified the elements of this offence as 

a.	the accused
b.	unlawfully, and
c.	indecently
d. assaulted
e. the female complainant.

[15] In State v Augustine [supra ] his Lordship Justice Temo further said:

"The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, a step-father touching her step-daughter's breast and/or vagina or inserting his finger into her vagina or anus, without her consent. It is therefore essential for the prosecution to prove beyond reasonable doubt that the assault, was not only unlawful, it was also indecent, that is, right-minded people would consider the "assault" to be "indecent".

ANALYSIS OF THE EVIDENCE

[16] For both parties the crucial witnesses were the complainant and the accused respectively.PW1 said that whilst she was having short breath the accused came and massaged her back and then kissed her. On the other hand the accused admitted that he was only present on that time. He denied massaging her or kissing her. I also note that according to both parties there were some other persons present at that time but they were not called as witnesses. But I am also mindful that presently there is no need for corroboration of the complainant's evidence in these kinds of offences (Section 129 of the Criminal Procedure Decree) .

 [17] PW1 was cross –examined vigorously by the learned counsel for the accused , but she maintained her position. Only contradiction that the defence could elicit was about the date she made a complaint to the police but I find that her late complaint does not affect her credibility. 

[ 18] This Court also finds that the accused has taken contrasting position about this incident in the trial. In his testimony he maintained that he did not massage or kiss PW1. But during the cross- examination of PW1 it was inquired by the learned counsel for the accused about her medical condition if the accused did not massage her. I believe the counsel could have asked this on the instruction of the accused . In view of these different positions taken by the defence I find the accused is not a credible witness. 

[19] After considering the reasons mentioned above as well as demeanor of the parties I am satisfied about the version presented by the prosecution .Therefore I decide that the prosecution has proved this charge beyond reasonable doubt. 

[20] The accused is guilty for this offence and convict him accordingly 

[21] 28 days to appeal

21st May 2014

H.S.P.Somaratne
Resident Magistrate