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State v Narayan [2017] FJMC 56; Criminal Case 103.2006 (25 April 2017)

aIN THE MAGISTRATES’ COURT OF FIJI

AT TAVEUNI

Criminal Case No: 103/2006

STATE
V
ROHIT RAVINDRA NARAYAN

Counsel : Mr.R.Kumar(ODPP) for the prosecution
Mr.Korotini (LAC) for the Accused
Date of Hearing : 24^th of April 2017
Date of Judgment : 25^th of April 2017

JUDGMENT

1. The accused is charged with one count of Rape contrary to sections 149 and 150 of the Penal Code, Cap 17.
2. The particulars of the offence are “ROHIT RAVINDRA NARAYAN , on the 20^th day of May ,2006 at Taveuni in the Northern Division ,had unlawful carnal knowledge of a woman namely, MIRIAMA MELIKI without her consent”.
3. The accused pleaded not guilty for this charge wherefore this proceeded for the hearing. The prosecution called only the complainant and for the defence the accused gave evidence.
4. The complainant, Miriama Meleki said on 2006 she was 21 years old and staying in Tavuki village. On 20/05/2006 she came to Naqara town and met one of her friend. The friend asked her to go with some of her friends and have some drinks. The complainant with her friend boarded a car and went to Suqule and was drinking gin. She noticed the friend missing and the accused pulled her clothes. He punched her face and pulled her pant and underwear. She asked him not to do it, but the accused kept forcing her and put his penis inside her vagina. It lasted for nearly 01 hour and she did not consent for that. After the sex she collapsed and when she woke up she did not have her pant. She walked to a village and after that was taken to the hospital. The witness also identified the accused in the court.
5. In cross-examination she said she came to town with Teresia to do shopping and after that went with some Indian boys for drink. At that time she did not know the accused had intention to have sex with her. She could not leave the place because the accused was pulling the clothes and when she was drinking also was not aware about the accused intention.
6. The medical report of the complainant was marked by the state as PE1 without an objection by the defence.
7. The accused in his evidence said he went with the complainant to drink and later asked her for sex. She agreed and they hugged, kissed and had sex. It lasted for nearly 20 minutes and after that the accused came home leaving the complainant there.
8. In cross-examination the accused denied assaulting her and was aware that she was taken to the hospital. He asked for sex and she agreed.
9. 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).

10. The accused is charged with one count of Rape contrary to sections 149 and 150 of the Penal Code and the prosecution has to prove beyond reasonable doubt the following elements :
    1. the accused;
    2. without the consent of the complainant;
    100. penetrated the vagina of the complainant with his penis and
    4. the accused knew or believed that the complaint was not consenting or the accused was reckless as to whether or not she was consenting.
11. The State called only the complainant and relying on her evidence as well as the medical report to prove this charge.
12. Presently there is no need to corroborate the evidence of the victim in a sexual offence and the court can convict an accused based solely on the evidence of the victim if it satisfied about that evidence.
13. From the evidence I find that there is no dispute about the identity of the accused and he had sexual intercourse with the victim on that day. But his version is that this was a consensual sex.
14. Hence the issues to determine in this case are whether the victim was not consenting for this sexual intercourse and that the accused was aware that she was not consenting.
15. The victim in her evidence said she did not consent and asked the accused not to have sex with her. He assaulted her in the face and forced on her. I find her evidence is credible.
16. The accused denied assaulting her. But the medical report of the victim clearly shows multiple injuries in her face soon after this incident. This is consistent with her version.
17. Having gone through her evidence and demeanor also I find the victim is telling the truth in the court. Even though the accused denied having sex without the consent of the victim I reject his version.
18. The above evidence clearly shows that the victim was not consenting and the accused was aware that she was not consenting for the sexual intercourse on that day.
19. Hence I find the prosecution has proved this charge beyond reasonable doubt against the accused.
20. I find the accused guilty for one count of Rape contrary to sections 149 and 150 of the Penal Code and convict him accordingly.
21. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate