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State v Tuwai [2010] FJMC 49; Criminal Case 710 of 2007 (7 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 710/07

BETWEEN

THE STATE

AND

ATUNAISA TUWAI

JUDGEMENT

1. The accused is charged for Robbery with violence in this case and the charge reads as follows;
   

Statement of Offence

Robbery with Violence: contrary to section 293(1)(b) of the Penal Code

Particulars of offence

Atunaisa Tuwai and another on the 27th day of October 2007 at Lautoka in the Western Division robbed Gyanendra Sharma of 1 gold chain with pendant valued at $ 1300 and a wallet containing cash of $ 620 all to the total value of $ 1920 and immediately before the time of such robbery did use personal violence on the said Gyanendra Sharma.

2. The case was filed on the 31st October 2007 against this accused person and another. The alleged offence has been committed on the 27.10.07. The other accused has pleaded guilty and has been dealt with. This accused has pleaded not guilty and the case was taken up for hearing on the 19th February 2010.
   
3. The prosecution has called four witnesses and the prosecution was led by a police prosecutor. After the prosecution case was closed the court decided that the prosecution has made out a case which sufficiently requires the accused to reply. The accused was unrepresented and he only made an unsworn statement from the dock.
   

THE LAW

4. According to Section 293(1)(b), any person who robs any person, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person is guilty of a felony, is liable to imprisonment for life, with or without corporal punishment.
   
5. Therefore the prosecution has to basically prove;
   
   1. the date and time the offence was committed
      
   2. the identification of the accused
      
   100. that the accused has used personal violence immediately before the robbery
        
   4. that the complainant was robbed.
      

ANALYSIS

6. The prosecution case was that the accused came with three others and robbed the complainant when he was returning home from the town with his wife. The accused did not put forward any defense as such apart from denying the allegation.
   
7. The complainant, Jyanendra sharma said that on the 27th November 2007 at about 7 pm he was in the town with his wife, Kinisimera Sharma. He said he went to town to withdraw 620 dollars for their son's school fees. On their way back his wife has gone to buy some ice cream and after a while he has noticed a person following them. Later two other persons have joined that person and three of them have started following him and his wife. The complainant said that then he realized that they are coming to do something to them. He has told his wife to run for help. Then the three persons have come and grabbed him. The complainant said the accused grabbed him from his neck. He said the accused has grabbed his gold chain and the pendant which worth about 1300 dollars. He further said that during the struggle they have taken his wallet too. At the mean time his wife has gone to a house and when a person from that house came out the accused have fled the scene.
   
8. In this case there was no dispute over the date time and the place where the alleged incident took place. The most crucial issue is the identification of the accused. The police have not held an identification parade. However the complainant and the complainant's wife have identified the accused from the witness box. The complainant's wife said during the evidence she noticed the accused from the time she bought ice cream. But according to the evidence the accused had not been known to the complainant or to his wife.
   
9. Yet the evidence of Asivorosi Dakuilagi has cleared doubts regarding the identification of the accused. Asivorosi Dakuilagi had been an accomplice of this offence and the prosecution has made him a witness. He said on the 27 October 2007 when he was coming from the town with another friend of him they met the accused on the way. He further said at the request of the accused they too have followed the couple and later the complainant was robbed.
   
10. It should be noted that the evidence of the complainant was corroborated by this witness. The complainant once said that during the scuffle he hit one of the boys. Confirming this position prosecution witness Asivorosi Dakuilagi said that he was one of those three persons and the complainant has slapped on his face. This witness pointed out to the complainant and his wife who were sitting in the court house and said it's the same couple they followed on that day.
    
11. Although the accused cross examined the witnesses he did not dispute the identification. Some of the questions put by him to the witnesses clearly show that he does not dispute identification. Following are some of the question he asked;
    

Q: Did you throw stones at us?
Q: Who grabbed you first?
Q: Your wife has said that she has seen three of us?
Q: You told my aunty only the Gold chain was stolen?

12. How ever the burden of proving the identification of the accused lies on the prosecution. Even if the accused is silent regarding the identification it is the duty of the prosecution to prove this element beyond reasonable doubt.
    
13. Apart from the identification by the complainant and his wife the witness, Asivorosi Dakuilagi has identified the accused as a person who is known to him. Accordingly based on the evidence led by the prosecution I am satisfied that the prosecution has proved the identification of the accused beyond reasonable doubt.
    
14. The complainant said when they started running for help the accused and the two other persons have also come running after them. Then he said that the accused grabbed him from his neck while the other two persons were holding him. The complainant said that he was frightened and he felt that no one is safe to go on the roads. The complainant's wife said while giving evidence that when she ran towards a house for help the accused and the other two have grabbed her husband. She said only when the owner of the house which she ran for help came out, the accused released her husband.
    
15. It appears that the accused has used violence when he robbed the complainant. However there is no evidence of injury or no medical evidence produced by the prosecution to corroborate personal violence. How ever it should be noted that causing injury is not necessary to establish violence. According to Tevita Malaseba Vs State (2002) AAU0033/00s it has been held that "violence does not require proof of injury. Uncontradicted evidence that the robbers were armed with knives and tried to hold a service station attendant is sufficient".
    
16. The accused cross examined the complainant regarding using personal violence on him. Following are some excerpts of his cross examination.
    

Q: I did not assault you?
A: He was the one who was holding my neck.

Q: Who grabbed you first?
A: you.

Q: I am not the one. No one grabbed you?
A: He is the one who grabbed me.

17. The accused said from the dock that he does not believe what the witnesses said and that he did not take the wallet and the chain.
    
18. It should be noted that although the accused has denied any personal violence on the complainant the prosecution evidence explicitly shows that there has been personal violence. Further it should be noted that the accused was not able to attack the credibility of the prosecution witness at any point. Especially the evidence of the complainant and his wife was unshaken and I am convinced that each others evidence corroborated the prosecution version. Thus I decide that the prosecution has discharged the burden of proof successfully with regard to using of personal violence on the complainant.
    
19. The complainant and his wife both said in evidence that 620 dollars which was withdrawn to be paid for their son's educational purpose was taken by those who robbed them. Further both of the witnesses said that a chain and a pendant worth of 1300 dollars was grabbed by the accused. Also it was transpired that no stolen items were recovered by the police. The Officer who arrested the accused said that nothing was recovered although the accused's house was searched. However I am satisfied even in the absence of any items being recovered from the accused's possession that the prosecution evidence is strong enough to prove that the complainant was robbed by the accused.
    
20. After the closing of the prosecution case the accused did not call witnesses or gave evidence. He made a dock statement and said that he does not believe what the witnesses said and that he did not take the wallet or the chain. It should be noted here that although the accused has merely denied the allegation he was not at least able to create a doubt in the prosecution case. Thus I decide that the credibility of the prosecution evidence remains unshaken.
    
21. In the circumstances I am satisfied that the prosecution has proved the charge against the accused beyond reasonable doubt. Thus I find the accused guilty of committing robbery with violence on the 27th day of October 2007 on the complainant.
    
22. Accordingly I convict the accused for the charge against him.
    

Rangajeeva Wimalasena
Resident magistrate

Lautoka
07.05.2010