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State v Deo [2007] FJMC 31; Criminal Case No 676 of 2005 (7 December 2007)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 676 OF 2005

STATE

V

BISSUN DEO s/o Ram Prasad

NILESH KUMAR s/o Bissun Deo

RAJNEEL KUMAR s/o Bissun Deo

ANIL KUMAR s/o Suren Prasad

Dates of the Trial: 11/09/07; 25/09/07; 04/10/07; 06/11/07
Date of Judgment: 07/12/07

For the Prosecution: Sgt. Shaukat Ali
For the Accused: Mr H. A. Shah

JUDGMENT

[1] The four accused are charged with the offence of Grievous Harm. The particulars of the offence are as follows:

Particulars of Offence

Bissun Deo s/o Ram Prasad, Nilesh Kumar s/o Bissun Deo, Rajneel Kumar s/o Bissun Deo and Anil Kumar s/o Suren Prasad on the 19th day of July, 2004 at Lautoka in the Western Division unlawfully and maliciously did grievous harm to Chandar Prakash s/o Devi Prasad.

[2] Grievous Harm is defined in the Penal Code as:

"Grievous Harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense."

Delay in laying of charges

[3] This offence took place on 19/07/04 and the charges were laid on 30/11/05. The prosecution did not offer any explanations for this delay which is about 17 months and also the delay is of concern as the final medical report [Exhibit P5] was available on 14/10/04.

[4] Delay in trial

The matter was first called on 09/01/06 and it was first set down for hearing on 11/07/06. On 11/07/06 the third accused did not attend Court and I was informed that he had migrated to U.S.A. The defence counsel submitted that the prosecution should withdraw the case against the third accused and proceed against other three accused. Prosecution sought an adjournment to ascertain the whereabouts of the third accused. This case was then adjourned on two different occasions when it was set down for hearing. On 06/10/06 and I had to go to Suva to attend a meeting and 22/06/07 the prosecution did not have their witness. The prosecution has not withdrawn the case against accused 3 and the trial proceeded against the three other accused whilst a bench warrant was pending against him.

[5] It is not in dispute that the accused and the complainant Chandar Prakash had gathered at the house of Daya Prasad (who had died on 10/07/04) to attend to funeral rites. Daya Prasad is first accused’s brother and Chandar Prakash’s brother-in-law (his sister is married to him).

[6] It is also not in dispute that Chandar Prakash and the four accused had exchange of words and this led to a fracas and as a result Chandar Prakash received injuries to his left eye and has lost the vision in that eye. He had an earlier injury to the same eye as a result of motor vehicle accident in 2002 and had lense implanted and had full vision.

[7] The complainant claimed that the injury to the eye was caused in the fracas and the three accused dispute that and claimed that there was some pushing and shoving and as a result Chandar Prakash fell in the drain and received injuries to the eye.

[8] This case has a very alarming feature in that there were lots of people gathered at Daya Prasad’s house but the prosecution has not called any independent witnesses. The first witness Prema Wati is Chandar Prakash’s sister and the second witness only gave his statement to the police in April 2005 and he only came about to give evidence after Chandar Prakash told the investigating officer PC Anup of his whereabouts.

[9] I must say that the two witnesses and Chandar Prakash have given different accounts of how the fracas took place.

➢ Prema’s Version

Prema said when she came out she saw Chandar Prakash was on the ground and accused 3 was kicking him and accused 2 was holding on his collar and three people were restraining fourth accused. She also said that first accused was very abusive towards her and used some very bad swear words.

➢ Chandar Prakash’s Version

Chandar Prakash said that the first punch was thrown at him by first accused and it just grazed his cheek and he was punched on the stomach by accused 2, 3 and 4 and accused 2 punched him on the eye and accused 3 punched him in the left eye (which is the subject of the charge). He said that when he fell on the ground. Accused 1, 2 and 3 kicked him and in cross-examination he said that he told the police in his statement that he did not know who kicked him and he also said that Rajneel (accused 3) punched him in the left eye and not accused 1 and when questioned in cross-examination that he did not have injury to other parts of the body except the left eye he agreed that he did not have any injury to other parts of the body.

➢ Praveen Kumar’s Version

Praveen Kumar (PW4) said Bissun Deo (Accused1) punched him on the face and accused 4 punched him on the stomach and Accused 1 and 3 hit him on the eye. He said he did not remember about the kicking as there were lots of people present but he only saw accused 2 kick Chandar Prakash.

[10] It is not the prosecutions case that all accused had previously conspired to assault Chandar Prakash. The whole fracas just erupted after some exchanges between the accused and Chandar Prakash and Chandar Prakash stated that accused 3 hit him on the left eye and he is not on trial at present as there is a bench warrant pending against him and according to Chandar Prakash the other punching and kicking did not cause him any injury and therefore cannot come within the definition of "grievous harm" as earlier stated.

[11] I therefore find that the prosecution has failed to prove its case against the three accused and they are acquitted of the charge.

[Mohammed S. Khan]
Resident Magistrate

07 December, 2007