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State v Baleivunidawa [2010] FJMC 62; Criminal Case 198 of 2009 (23 June 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 198/09

BETWEEN

THE STATE

AND

RASALATO BALEIVUNIDAWA

SENTENCE

1. The accused was charged on the 27th April 2009 with one count of Assault Occasioning actual bodily harm and one count of damaging property.
   
2. The statements of offences and the particulars of offences are as follows;
   

Statement of offence

Assault occasioning actual bodily harm: contrary to Section 245 of the Penal Code.

Particulars of offence

Rasalato Baleivunidawa on the 21st day of March 2009 at Lautoka in the Western Divisions assaulted Davendra Chand s/o Pancham Dass thereby occasioning him actual bodily harm.

Statement of offence

Damaging property: contrary to Section 324 of the Penal Code

Particulars of offence

Rasalato Baleivunidawa on the 21st day of March 2009 at Lautoka in the Western Division wilfully and unlawfully damaged the shirt valued at $ 35 the property of Davendra Chand s/o Pancham Dass.

3. The offence is committed on the 21st March 2009. The accused was produced to court on the 27th April 2009. Initially the accused pleaded guilty. However the court entered a plea of not guilty as the accused disputed the facts. The complainant and the accused are neighbours and the accused informed court that the complainant is not willing to reconcile.
   
4. The case was taken up for trial on the 29th March 2010. The accused was unrepresented and the prosecution was conducted by a police prosecutor. The prosecution called four witnesses. After the prosecution case the court held that the prosecution has made out a case for the accused to reply. The accused did not give evidence or did not call any witnesses.
   
5. The Section 245 of the Penal Code reads as follows;
   

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment."

6. The Section 324 of the Penal Code reads as follows;
   

"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years".

7. The complainant said that on the 21st March 2009 at about 9.30 pm he wanted to get some ice cream for his grandchildren. Two vehicles were blocking his drive way and one vehicle has been removed from there and the other too has moved to the main road. The complainant said all of a sudden that vehicle was reversed and bumped on to his vehicle. He said then he stopped the vehicle and went to the other vehicle and asked from the driver whether he didn't see the vehicle. The complainant said then he opened the door of that driver and took him out to show the damage. The complainant said then the other person who was on the driving seat came and asked why he put the driver out of his vehicle and punched him on his face. The complainant identified the accused as the person who assaulted him and said he is his neighbour. The complainant said that he was pulled by his shirt and the shirt was damaged. Further he said someone hit on his neck and then he went unconscious.
   
8. During the cross examination the accused suggested "I only punched you how I can hit you on the neck?" the answer of the complainant was "I don't know". Again the accused asked "You dragged my driver out. That's why I got angry?". The complainant said "Yes I pulled out the driver".
   
9. The prosecution called the complainant's two sons, namely Nilesh Chand and Vimlesh Chand. They have come to the scene after it was triggered and however they corroborated the evidence of the complainant.
   
10. It appears from the evidence that the complainant has pulled out the driver of the accused's van to show the damage to his vehicle. At that instance the accused has punched the complainant. According to the medical report tendered in evidence the complainant has received lacerations on lower and upper lips.
    
11. The accused did not dispute the evidence led regarding the damaged shirt of the complainant. The complainant said the accused pulled it and damaged it. Further he said he bought the shirt for 35 dollars.
    
12. It should be noted that the accused did not dispute the fact he punched the complainant or he did not tear the shirt of the complainant. The only contention was that the accused did it since the complainant dragged his driver out of the van.
    
13. The evidence led with regard to the two charges was not discredited by the accused. It is not a defence to say that a person was assaulted as he offended the other person. Besides the accused remained silent after the court decided that there is a case for the defence to reply. The prosecution evidence pertaining to the charges was not challenged by the accused. I am satisfied that the prosecution discharged its burden of proof.
    
14. Accordingly I decide that the prosecution has proved the first count and the second count beyond reasonable doubt. Therefore I convict the accused for the first and second counts.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
23.06.2010