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State v Sharma [2009] FJHC 59; HAC045.2008 (3 February 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 045 of 2008

STATE

V

DASWA NAND SHARMA

Date of Hearing: 16th February 2009
Date of Summing Up: 3rd February 2009

Counsel: Ms. V. Lidise for the State
Accused in person

SUMMING UP

Ladies and Gentleman assessors, we have come to the end of this case. It is now time for me to sum up the case for you.

Before doing so, I wish to remind you what I told you at the beginning of the trial that your decision must be based solely upon the evidence which you heard and which was presented in this court during the trial and nothing else. You must ignore totally anything that you have heard or read about this case or seen outside this court at any time. That is not evidence.

It is my function to direct you on matters of law that is to tell you what the law is. You must accept my directions on what the law is and act upon it that is applying the law to the facts as you find them.

You are the sole judges of facts. It is for you to decide what evidence you accept and what you reject. It is for you to decide where the truth lies. It is for you to decide whether the accused is guilty or not guilty. In reaching your decision you have to decide whom to believe and what actually happened. I remind you again what I told you that you will need to assess witnesses by reference to their honesty that is truthfulness, reliability that is accuracy of recollection or observation and demeanour. You do not have to accept or reject everything a witness says but may reject part and accept the remainder if you consider it worthy of belief.

If during the course of summing up, I express a view of the facts it is your duty to reject that view if it does not appeal to you. If you think that view appeals to you, you may accept it. If I omit to mention evidence that you consider is important, you take it into account in your deliberations. If you think I have emphasized evidence that you consider is unimportant, you must disregard that fact. As far as facts are concerned, you are the masters of fact.

At the end of summing up, you will be asked to retire and deliberate. After you have reached your decision, you will return to court and you will be asked individually whether the accused is guilty or not guilty. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous even though that may be desirable. Your opinions will carry a great deal of weight with me but I am not strictly bound by them.

Foremost in our criminal law is the presumption of innocence. The accused is deemed innocent until he is proved to be guilty. It is the duty of the State to prove its case against the accused. The accused does not have to prove his innocence.

When I say the State or prosecution has to prove its case, it must prove its case beyond reasonable doubt. This means that before you can convict you must be satisfied so that you feel sure that the accused committed the offence. If you have any reasonable doubt so that you do not feel sure whether or not the accused committed the offence, then in that case you are duty bound to return a verdict of not guilty.

The prosecution has to prove every element of the offence beyond reasonable doubt and if it fails to do so the accused is entitled to be acquitted. You must carefully consider all the evidence before you reach a decision. If at the end you are left with a reasonable doubt as to any one of elements of the offence, the accused is entitled to the benefit of that doubt.

The accused is charged with the offence of Attempted Murder contrary to Section 214(b) of the Penal Code Cap 17. Section 214(b) of the Penal Code reads as follows:

"Any person who with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony, and is liable to imprisonment for life".

I shall read the Section once again.

This section has a number of elements to it. They are:

1) The accused had intent to unlawfully cause the death in this case of Malti Devi. Unlawfully means without just excuse. It must be a deliberate act

2) The accused did an act or acts

3) The act must be such as likely to endanger human life

I must explain intent. Element 1 refers to intent to unlawfully cause the death. A person’s intentions are locked up in his mind. The intent cannot be physically observed. However, his intent can be proved by what he said or told others or it can be inferred from his conduct prior to, during and subsequent to the commission of the offence.

It is for the prosecution to prove that the accused intended to unlawfully cause the death of Malti Devi. It is not for the accused to prove otherwise that is to negative intent. It is for the prosecution to prove intent to unlawfully cause death beyond reasonable doubt.

The State relies on the evidence of the complainant Malti Devi and some neighbours namely Vulivakarua Tunaivalu who said he saw the accused running away with a long handle cane knife and Epeli Tikonavunimoli who said the accused had asked him for knife. Remember he did not say for what purpose accused wanted the knife. He did not give the knife as he only had one knife and he was cutting firewood. Later he dropped firewood at his house and heard some one crying for help. He went and saw Malti Devi lying down covered in blood. The state also relies on evidence of Ahmed Hussain who stated that he saw the accused running in Legalega with a knife in his hand.

The State also relies on medical evidence from Doctor Rajiv Patel. It also relies on interview notes and charge statement to prove its case.

The accused has denied the charges.

The first element of the offence is intent unlawfully to cause the death. You must be satisfied beyond reasonable doubt so as to be sure that the accused harboured this intent unlawfully to cause the death. The prosecution led in evidence from the complainant Malti Devi who said that she saw accused by the kitchen with a short handle cane knife. She further told the court that it was the accused who struck her with the knife firstly on the back of the head on the left side and she became unconscious and fell. She described the injuries to the head, face, right hand which had three fingers completely severed. She said she received fracture of right wrist. She suffered 3 cuts to her right leg. She received cuts on her forehead and one by the hairline on the forehead. She was hospitalized for 2 months she said.

In considering the intent to cause death you may need to consider following factors in addition to any others you may consider relevant;

(a) the weapon used

(b) the nature of injuries inflicted and their number

(c) where on the body the complainant was struck. You may consider that striking a person with a knife around the head is more lethal than a blow struck about the leg

You must also consider the evidence given by the doctor who described the injuries suffered by Malti Devi and that she was hospitalized for 37 days. The doctor described the injuries as follows:

[1] 8 cm long by 1cm deep cut on right side of forehead

[2] 26 cm by 10 cm deep cut along right cheek to the left cheek and running below the nostril

[3] 11 cm semi circular cut on the rear left of the head

[4] 11cm by 3cm cut on the right temporal parietal region – cut on head on right side above the ear as pointed out by the doctor

[5] open fracture of right ultra – in the middle of forearm

[6] three fingers were severed from the right hand. Malti Devi showed you the severed fingers.

[7] she suffered three diagonal cuts to the right leg. These were:

(a) 35 cm long and 10 cm deep on the upper thigh at the back

(b) 17 cm by 10 cm deep cut on the lower portion of the thigh just above the knee

(c) 12 cm long by 10 cm deep cut below the knee on the calf region

These were all clean cuts not jagged. He expressed his opinion that substantial force would be required to cause such injuries. He stated that the injuries were serious and when he first saw Malti Devi, he thought she would not survive but she recovered. He considered that these injuries could be caused by a knife.

The doctor’s evidence is also relevant to the proof of the third element – that is acts of accused must be likely to endanger human life. Do you consider that the injuries as described by the doctor and the length of hospitalization which was the result of these injuries go to show this element of danger to human life? Remember the doctor thought on first impression that Malti Devi was unlikely to survive, but she made remarkable recovery.

You must also consider evidence of Vulivakarua Tuenaivalu who first witnessed an argument in the morning at the accused’s father’s house, and police intervened. He said after 12.00pm he heard a loud scream. Then he heard a cutting sound like someone cutting meat. He had experience in slaughtering pigs and cows with cane knife.

He looked towards Sau’s house. Sau is Malti Devi’s husband. He saw Daswa Nand the accused come running with a cane knife which he later said was long handle knife. The accused ran into the cassava patch. He went to Sau’s house and saw Malti sitting down wounded. He called the police. He had known the accused since May 2007. So he was well equipped to identify the accused.

You must remember that he did not actually witness the assault but only heard sound of knife and accused running away. He is not an eye witness to the assault.

Malti Devi’s husband Ratu Aminiasi Kotadroka Saumaibulu Bukalidi who is commonly known as Sau told the court that he had gone to the market at 10.30am and on his return he was told by his children that their mother had been taken to hospital. He then went to hospital.

The accused has denied the charges. He does not have to prove anything. You would recall the accused questioning Malti Devi that they owed his father rent, which she denied. There is evidence that police had been called by his father because he had made complaints against Malti Devi and her family. There is therefore evidence from which you may or may not infer hostility between the parties. The accused also questioned Malti Devi about differences she has with her husband about the smallest child. She denied that her husband punched her or that she fought with her husband where they rented previously.

Additionally, the state relies upon the interview notes and charge statement of the accused, to show that the accused had the intent to kill and that it was he who struck Malti Devi with a knife and nobody else.

The accused’s interview notes were recorded by D.C. Shiri Chand in the presence of Sumeshwar Prasad. D.C. Shiri Chand according to Sumeshwar Prasad went away to New Zealand and has resigned from the police force. Therefore he was not called as a witness. The interview was commenced at 6.48pm on 16th March 2008 and completed at 11.17am on 17th March 2008. The accused was not continuously interviewed over this period. He was given a meal at 8.00pm and interview recommenced after 21 minutes. There was a further break of 10 minutes at 9.00pm and interview was suspended at 10.00pm for the night and re-started the next morning at 7.10am.

The charge statement was recorded by P.C. Daniel Naidu who testified. It was witnessed by P.C. Timoci Naulu. The actual statement was written by the accused himself. The charge statement was in the process of being recorded at 11.30am on 17th March, 2008. The medical report which is also an exhibit was being prepared at the same time. The accused signed on the medical report – see the front page. How could the accused be before two officers at the same time? You will be given these documents when you retire to deliberate.

The statements are in the nature of confessions of accused’s involvement in the offence. It is for you to peruse these documents and evaluate whether the statements made by the accused are true and can be relied upon.

It is very important that you should scrutinize the contents carefully and the circumstances in which the interview and charge statements were taken in order to decide whether the contents are true or not.

Allegations of assault by Sumeshwar Prasad, threats to hand the accused over to the military if the accused did not co-operate and fabrication of the statement were put to Sumeshwar Prasad when he was giving evidence. He denied those allegations. Sumeshwar Prasad could not recall if the accused was locked up in a cell for the night; he could not recall who he instructed to lock accused in the cell. He produced no cell diary.

It is for you to decide what value or weight you can give to these alleged confessions.

Obviously if a confession is induced by threats or assault or other improper means, then there is a risk to be considered that it might not be true and that statement is falsely given to police.

What you have to decide is firstly that the accused made those statements in those two documents and if you find they were made by him. Then secondly you must decide whether they are true and show the accused guilty of attempted murder.

The prosecution is also relying on a small handle cane knife which it alleges was found after the accused agreed to show them where he had thrown it. It was found along Legalega Road where the officers went with the accused to look for the knife. Remember Ahmed Hussain stated that he saw the accused running in Legalega with a cane knife. He had known accused from before the incident.

You would recall Malti Devi Saying that the accused used a short handle cane knife. You would also recall that Vulivakarua Tuenaivalu saying that he saw the accused run away from the direction of Akhila Nand’s house with a long handle cane knife. Akhila Nand is the father of the accused. You have to consider this discrepancy and whether it is material to cast doubt on the prosecution version of events.

Remember witnesses are recalling events which occurred about a year ago so they may not be able to accurately recall events.

Even though the prosecution produced the knife, it did not produce a file used to sharpen the knife and which file was shown to the accused during his interview and a file which he allegedly said he used. Nobody has explained the reason for its non production.

Remember it is not for the accused to persuade you that he was pressurized into admitting guilt and signing fabricated admissions. It is for the prosecution to prove to your satisfaction beyond reasonable doubt that the confessions are true and made under circumstances which cast no doubt on their truth.

You must be satisfied beyond reasonable doubt so as to be sure that it was the accused and no one else who inflicted injuries on Malti Devi. You would recall the accused suggested to Malti Devi that she and her husband had differences over the conduct and that it was her husband who assaulted her. She denied this.

Malti Devi in her evidence stated that she saw accused sharpening the knife by the kitchen and later it was he who struck her. She had known the accused for quite some time. Secondly you would recall the evidence of the FIT student Vulivakarua Tuenivalu who told the court that he saw the accused running away from his house towards cassava patch behind the house. He had a knife in his hand. He did not actually see the assault but it places the accused close to the scene of offence. The prosecution also relies on the evidence of Epeli Tikonavunimoli who told the court that the accused asked him for a knife and later a file. He did not give him the knife as he had only one knife.

Sau the husband of Malti Devi denied that he inflicted injuries on his wife. His version was he was not home at the time but had gone to the market. You must consider whether the husband was at home or not at the time of the incident.

The State has submitted to you that on the evidence of witnesses there is only one offence for which the accused can be found guilty and that is attempted murder.

Assuming that you are not satisfied beyond reasonable doubt about any one or more of the elements of attempted murder the only other offence to consider is the offence of act intended to cause grievous harm. The intent for this offence is intent to maim disfigure, disable or do some grievous harm. It is less than intent to kill. If with intent to do some grievous harm, a person unlawfully wounds another person, he is guilty of an offence of act intended to do grievous harm. Attacking a person with a cane knife is unlawful except in self defence of which no suggestion has been made by the accused.

Finally if you have any lingering but reasonable doubt about any of the following that is that it was the accused and no one else who inflicted the injuries, that he had the intent to cause the death of Malti Devi, that the injuries inflicted were likely to endanger human life, it is your duty to acquit the accused of attempted murder and in that event consider the lesser offence of act with intent to cause grievous harm.

You may now retire, consider the evidence in its entirety and reach a verdict. You will be given the exhibits for your perusal.

[Jiten Singh ]
Judge

At Lautoka
3 March 2009.