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State v Ram [2009] FJMC 13; Criminal Case 564.2005 (12 August 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 564 of 2005

STATE

V

PARAS RAM (s/o Raja Ram)

For Prosecution: Inspector Ali
Accused: Present
For Accused: Mr. Ram Chand

JUDGMENT

The accused, Paras Ram (s/o Raja Ram) is charged with Act with Intent to Cause Grievous Harm, contrary to Section 224 (a) of the Penal Code (Cap 17).

It is alleged that Paras Ram (s/o Raja Ram) on the 20th day of October 2005 at Waila, Nausori in the Central Division with intent to do grevious harm unlawfully wounded Pravin Chand (s/o Prem Chand) with a iron rod.

The matter was first called in the Nausori Magistrates Court on 25th November 2005 and since that time the case has been set for hearing more than ten times. The hearing finally commenced before me on 14th July 2009 and continued on 27th July 2009 when the hearing concluded.

The prosecution called 3 witnesses to prove its case against the accused. The burden of proving the said case was upon the prosecution and the standard of proof was that the prosecution was to prove its case beyond reasonable doubt.

The elements of the offence that the prosecution needed to prove beyond reasonable doubt were:

(a) That it was Paras Ram, the accused

(b) who on the 20th day of October 2005

(c) at Waila, Nausori

(d) with intent to do grievous harm

(e) unlawfully wounded Pravin Chand (s/o Prem Chand)

(f) with a iron rod

The prosecution has the burden to prove each of the above mentioned elements of the offence of Act with Intent to Cause Grievous Harm, contrary to Section 224 (a) of the Penal Code that the accused has been charged with.

Facts not in dispute

The accused and the prosecution led evidence as to the date of the alleged offence, 20th day of October 2005 and the venue of alleged incident, which is Waila, Nausori. The court therefore accepts that there is no dispute as to these elements of the offence.

Facts in dispute

The facts that are in dispute in this case are that the accused, Paras Ram with intent to cause grievous harm unlawfully wounded the complainant with an iron rod.

The Evidence

The prosecution called 3 witnesses. The first prosecution witness was the complainant, Pravin Chand (PW1). The complainant in examination in chief stated that he knew the accused some 6 months before the incident. The complainant positively identified the accused. The complainant further stated that he went to the accused’s shop as the accused had called him. The complainant also stated that he then called Sanjay (PW2) to the shop and when Sanjay came the accused fussed with him. PW1 tried to separate them. Then someone grabbed him from behind and the accused struck PW1(the complainant) with something on the forehead.

Upon cross examination by the counsel for the accused, the complainant told the Court that he was held by someone from behind and he could not free himself and as he tried to free himself he was hit by the accused.

When PW1 was asked by the counsel upon cross examination, if the accused called him. The complainant (PW1) stated that the accused called his boss, Rajen who called him then to go to the accused place. The complainant here changed his version from his examination in chief statement that he was called by the accused.

The complainant upon further cross examination by the counsel stated that the accused hit him as someone held him. The complainant stated that he saw the accused hit him. However he did not see anything in accused’s hand. The complainant told the Court that he felt he was hit with something heavy.

The second witness for the prosecution was Sanjay Kumar Mishra (PW2). PW2 in his examination in chief stated that the accused’s son wanted to "one side" him and he was holding a stick. PW2 shouted for PW1 that the accused son wants to hit him. This is when PW2 states the accused hit PW1.

Upon cross examination, PW2 stated that when the fight took place, the accused’s son took a stick and wanted to hit him with a stick. At that time, the complainant held the accused’s son. PW2 further stated that the accused’s son could not hit him as Pravin held him and then the accused hit the complainant.

The accused in his defence gave sworn evidence and denied that he hit the complainant. He stated that he did not venture out when the alleged incident occurred. The accused stated that when he went out he saw Sanjay carrying an iron rod towards his vehicle. The accused stated that he was inside the shop with one, Deo Raj.

Deo Raj was the accused’s 3rd witness. Deo Raj stated in Court that he was present at Waila, Nausori at the accused’s partshop on 20th October 2005 at about 5.40pm. He left the shop about 6.45pm to 7pm.

Deo Raj told the Court that the accused was inside the building and did not go out at any time, when he was there. He also told the Court that he did not see what was happening outside as there were many people outside and he was there for other business.

The defence 2nd witness was Tomasi Koroi who was present throughout the incident and witnessed what transpired. This witness told the Court that there was an argument about a vehicle in front of Pioneer Autoparts Shop between 6-7pm. The accused’s son had an argument with Pravin and Pravin was holding the accused’s son from the back and he saw Sanjay (PW2) hit accused’s son with a wheel spanner and it missed and hit the complainant.

The version of Tomasi that Pravin held the accused’s son is consistent with what PW-2 (Sanjay) gave in evidence. They both state that Pravin held the accused’s son. This is in stark contrast to what the complainant (PW-1) stated. PW-1 told the court that he was held by someone from behind. The court believes PW-2 and Tomasi’s version as they both state that the accuseds son was held by the complainant.

Tomasi was cross examined by the prosecution and he outlined what transpired. He in cross examination stated that he was very close to the incident and he stopped Sanjay and then saw it was a wheel spanner. Tomasi further stated in court that he did not see the accused when the fight was going on. He stated that he was telling the truth and there was no reason for him to protect the accused. This evidence of Tomasi was not discredited by the prosecution. Tomasi in cross examination maintained that the accused was not present. He maintained that Sanjay is the one that hit the complainant.

The court having heard all the witnesses in this case noted the demeanour of all the witnesses. PW-1 (the complainant) gave inconsistent evidence. He first told the court that he was called by the accused and upon cross examination told the court that he was told by one Rajen to go to the accused. He stated that the accused had called Rajen and not him. The complainant also stated that when he was hit he was held by someone. This again is not supported by PW-2 (Sanjay) who stated that the complainant held the accused son when he was hit. Tomasi, the defence witness also saw the complainant hold the accused son.

The court noted that both Tomasi and Deo Raj were credible witnesses and were truthful in their responses. Both did not waiver in cross examination and maintained what they stated in examination in chief. The same cannot be said for PW-1 (the complainant). As for PW-2, it is alleged by Tomasi that he is the one who hit the complainant.

The burden of proving facts relevant to the offence in which the prosecution wishes to rely rests with the prosecution. The court on the facts tendered in evidence has number of doubts.

Firstly, the court has reasonable doubt that the accused caused the injuries to the complainant. Two credible witnesses, Tomasi and Deo Raj who evidence was credible in examination in chief and not tarnished in cross examination stated that the accused was inside all along when the incident is alleged to have occurred.

Secondly, the court does not believe the version of the complainant as he contradicts certain aspects of his evidence with PW-2, his own witness and the fact that he changes version on him being called by the accused to being sent there by someone else.

The court has reasonable doubts that the accused caused the injuries to the complainant. The court therefore is not satisfied beyond reasonable doubt that the accused is guilty of the offence that he is charged for.

The accused is acquitted of the charge.

28 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE
NAUSORI

12/08/09