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State v Ram [2011] FJMC 107; Criminal Case 607.2009 (4 October 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.607/2009

STATE

VS

BALWANT RAM

Mr. Ravi Narayan Police Prosecutor for the State
Mr. Garvin O’ Driscoll for the accused

Judgment

[1] The accused is charged with the offence of Assault Occasioning Actual Bodily Harm. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

ASSAULT OCCASIONING ACTUALBODILY HARM: Contrary to Section 245 of the Penal Code, Act 17.

Particulars of Offence [b]

BALWANT RAM s/o PARAS RAM on the 22nd day of April, 2009 at Nasinu in the Central Division assaulted SERINA DEVI KUMAR thereby occasioning her actual bodily harm.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 28-06--2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Sherina Devi; She is the victim of this case. In her evidence, she said that she stayed with her mother, two sisters and her two kids. The Accused Balwant Ram is tenant and they live in same compound. She said there are two flats and at the moment they stay in back side flat and front side is occupied by the accused since September 2007. Their premises are separated by a common wall. On 22-04-2009 after work she reached home at about 5.30 pm. Then she saw Balawant Ram’s son is in the roof. Then she asked her sister to tell the boy to come down. She said her PBS disc was on the roof and there were problems earlier. When she told it in loud then Mr Balwant Ram and his wife started arguing, saying things and swearing at them. The victim said that the accused swore “Sali Kutia Bajaru, Apna admi oh khae liya- you bitch, you have eaten up your husband”. At this time the accused, his wife and his two sons were at the scene. The all fired at her. The son told that “I cut you up” and that time the accused came and pushed her away. The witness said they were just facing each other and he pushed her away touching both shoulders. The the witness said she will go to the police; the accused replied “OK go, we’ll see what you can do”. She then reported matter to the police and she was referred to the medical examination.

[6] At this stage that Counsel objected to mark this document since the witness is not the author of this document. The prosecution said that they do not lead the contains of the document but they just wanted to identify the documents. Then, court reserved the Ruling and it was tendered as EX-1.

[7] Section 133 of the Criminal Procedure Decree provides the Admission of signed plan or report. It says;

133. — (1) Any plan, report, photograph or document purporting to have been made or taken in the course of an office, appointment or profession by or under the hand of any of the persons specified in sub-section (3), may be given in evidence in any trial or other proceeding under the provisions of this Decree, unless the person shall be required to attend as a witness by —

(a) the court; or

(b) the accused person, in which case the accused person shall give notice to the prosecutor not less than 14 clear days before the trial or other proceeding.

(2) In any case in which the prosecutor intends to adduce in evidence a plan, report, photograph or document a copy of it shall be delivered to the accused not less than 21 clear days before the commencement of the trial or other proceeding.

(3) The following persons shall be the persons to whom this section shall apply —

(a) medical practitioners and medical officers;

(b) Government analysts and chemists and laboratory superintendents employed by the Government;

(c) registered and Government land surveyors;

(d) examiners of weights and measures;

(e) veterinary officers, livestock officers and veterinary assistants;

(f) the officer in charge of the Criminal Records Office;

(g) engineers holding a degree in any relevant engineering discipline;

(h) authorised examiners appointed under the provisions of the Land Transport Act;

(i) dental practitioners and dental officers;

(j) survey technical assistants employed by the Government;

(k) police photographers; and

(l) scientists holding a degree in science relevant to botany, chemistry, micro-biology or any other scientific discipline relevant to forensics.

(4) The court may presume that the signature to any plan, report or document is genuine and that the person signing it held the qualification, appointment or office which he or she professed to hold at the time when the plan, report or document was signed.

[8] Thus, the doctor to be called or any objections for the medical report to be given clear 14 days notice otherwise that objection may not be valid. The medical was supplied with the disclosures to the accused and the accused has addressed the medical regarding injuries in his written submissions. I therefore hold this objection is futile. I admit the medical report as documentary evidence.

[9] The witness further adduced that the accused still lives same premises and they are not in talking terms. She said that even before the incident that they were not in talking terms as the accused defaulted rent and they had several cases between them.

[10] In cross examination the witness said there was two PBS and it does not need to adjust. She said that they have to call technical because their wire was pulled out by somebody. The defence suggested that there was a case in High Court, but the complainant has lost the case. The witness admitted that but she said they appealed against the High Court Order. The witness in answering to the defence said the accused to pay $3000 to the liquor Board. The defence suggested that the witness concocted this story because of past history. But the witness denied it saying that the accused is also troublesome person. The witness admitted though she had made several complaints against the accused, but he was not charged. She shows curious about it. She said they stopped talking when $3000 issue came between them. The defence suggested that it was only argument between both families but no assault took place. But witness said she came after work and this incident happened.

[11] PW2-Sudha Kumari; witness said she stays in Nadawa for last 16 years. She stays with her two daughters and two grandsons. There is one tenant and he is running a shop that premises. She said she can recall the incident happened on 22 -0-2009. Her daughter came after work and she saw the accused son was on their roof. Then, the victim asked her younger sister to tell that person to get down. She said she was in her porch. The porch is where the entrance of tenant just in front of it. She said that she was at the scene. When her younger daughter asked that person to come down, both parents of that person started shouting at them. She said that they were outside at the house and the accused pushed two times. She said she saw the incident but she did nothing.

[12] In cross examination, the witness denied exchange of swearing, but said only the accused’s side swore at them. They swore to the daughter. The accused’s wife was standing at the doorway and the accused came out and pushed the victim. She said he came about 4 metres. The witness said she is the registered owner of the property; there were dispute over 2008, 2009 and 2010 Liquor Licences. She said the licence is under her name but she did not use it but tenant use it and he should pay the licence fees. The accused did not pay so she filed a case to evict the tenant in High Court. She filed the case in 2009 and it is still going on. She admitted they lost the case but they have appeal against that order to Fiji Court of Appeal. The witness said despite they made several complaints against the accused never charged. She said PW1 is her step daughter, she became step daughter at her age of 5 years and they live together.

[13] PW3-PC 3708-Robert; the prosecution tendered the caution interview as Ex-2 and charge statement as Ex-3 through this witness and defence did not object the documents.

[14] After that prosecution closed their case, since there was a case to answer, the accused was explained and given his rights to call the defence. Then the accused opted to give sworn evidence and he also invited that scene to be visited by the court.

[15] DW1- The Accused: Balwant Ram: The accused said that he was in the shop on particular day. It was around 5.30 pm, and he admitted that they had an argument. When the PW1 came home, she saw his son was on the roof. Then she started swearing. The accused denied that he pushed the victim. He said they had an argument. He said it went for 15 minutes and they went in. Later the complainant went to the police. The accused said at the interview no PW1’s medical was shown to him. The accused in his evidence told that he runs the business and he wanted to transfer business of his name. But the complainant’s mother did not agree and they file eviction case. Then he won the case in High Court and later they appealed against the order and it is still going on. This was in 2008 and they started strange relationship not talking each other.

[16] In cross examination; the accused said the PBS antenna cause the problem. But she said that the complainant has never warned them not to go roof top. The accused said while the argument was going on the doorway was closed never came out at that time. The witness swore him Mahichod-Mother Fucker. The prosecution then questioned the accused referring question 10 of Ex-2 caution interview. The prosecution suggested the accused were out and he is contradicting his statement. I draw my attention to the question.

The question was; “Q 10; What happened after that? Sherina’s mother came and took her away and in my view they came to Valelevu to report the matter”

[17] It is to be noted in this statement the accused admitted the verbal abusing but he denied the pushing. It is unclear that the accused was out or in of the compound. Thus, it cannot be considered as a contradiction.

[18] Thereafter, court visited the scene. The premise is situated adjacent to the Tiri road and the accused’s shop is facing to the road. The victim’s house is on the backside. The victim enters to the compound by the side of shop but it was fully closed by a cement wall. There is small door at the back it opens to the garage of the accused. This garage is on the compound. While someone is on the porch of the victim’s house, accused’s back door cannot be seen. The incident happened in front of this back door. If the back door is closed tiny strip is open to see, no object can put out from that.

[19] Then the accused closed his case.

The Law

[20] The Section 245 of the Penal Code provides that;

“245. 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.( Corporal Punishment is abolished now) ”

[21] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm

[22] In State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) Her Ladyship Justice Nazhat Shameem observed similar offence under the penal code said; “Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm."
Burden of proof

[23] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[24] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express inion that they are guilty. If you have any reasonable doubt as to whether the accused pers persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any rease doubt about the the guilt of ccu accused."

[25] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka), /p>

"A fact is said said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.