IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.1126/2009

STATE

VS

GURPAL SINGH

Sgt Volavola for the State
Mr. Avinesh Reddy for the accused

RULING
(ON NO CASE TO ANSWER)

The Application

[1] This is an application by the defence under Section 178 of the Crimes Decree No.44 of 2009 (Section 210 of the Criminal Procedure Code). At the close of the prosecution case, the defence submitted that there was no case to answer and as a result the accused should be acquitted.

 The Governing Sections 

[2] Section 178 of the Crimes Decree No.44 of 2009 states that:-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused”

 Section 210 of the Criminal Procedure Code state that:-

 “If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused”

The Charge

[3] The accused is charged 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]

GURPAL SINGH, on the 25th day of September, 2009 at Nasinu in the Central Division assaulted one FARIYA BEGUM SHAH thereby occasioning her actual bodily harm.

The Charging Sections
[4] Section 245 of the Penal Code States as follows:-

“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.
*Inserted by Act No. 15 of 1973.”

Applicable Case Law

[5] The court is called for making a determination of whether or not a prima facie case has been made out against the Accused. It should be noted that ample past and recent judgements of superior court could be found in this regard.

i)R V Jai Chand 18 FLR 101 at page 103;
ii)Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996];
iii)Practice Note [1962] All ER 448;
(iv) State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) and;
(v)  Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005

[6] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states that;-

“…the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.

[7] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

“LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld: when there has been no evidence to prove an essential element in the alleged offence;when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. 

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal [ if compelled to do so ] would at the stage convict or acquit but on whether on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer’.

[8] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court. 
“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court.

The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

 An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates’ Court.” [Emphasis added]

[9] In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Justice Shameem held that the correct test in Magistrate’s Court under Sec. 210 of the Criminal Procedure Code is,

1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;

2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.

[10] According to Justice Shameem’s guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case. [Emphasis added]
[11] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

The Element of charge 

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

[13] 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."

The evidence

[14] To prove this charge prosecution called following witness;

PW1-Fariya Begum Shab
PW2-Ajay Kumar

In addition to these evidence scene visit was done by the court, Medical Report tendered as Ex-1, the accused statement tendered as EX-2 by the prosecution. PW1's Statement and PW2's statement were produced as DE-1, 2 by the defence respectively. 

Summary of evidence

[15]	PW1-Fariya Begum Shab; said she is staying with her parents at the moment. On 25th September 2009 she moved out from marital home which was at Nadawa. She said they got married on 17th July 2004 and they are still married but she filed divorce papers. She is married to the Gurpal Singh, the accused. She said on 25-09-2009 at about 8.30pm the incident occurred. On that particular day she had an argument with the accused. She offered cup of tea but he refused and went to the bathroom, she said while he was in bathroom a call came to his mobile phone and the complainant answered. There was girl and then she inquired. She asked "why the hell you call to my husband", then that girl swore at her and she retorted. When they were arguing her husband came. In her evidence she adduced "he grabbed me my shoulder, pushing me to the sitting room. I just fell on the floor, and then he started to grab my neck. I tried to escape....He was still grabbing my neck, I was shouting to neighbours, when the neighbours starting to shake the gate he removed my neck. Then he opened the gate, my neighbours came in. He then left the house by his car". She said then neighbours called her parents and she took her clothes and went parent's home. The medical report was tendered as Ex-1. 

[16] At cross examination, she said though they have an air conditioner, they did not use from her pregnancy and main door and curtains were opened she said they have fence and any one can see through the fence. At this stage, witness admitted that she self inflicted injuries during her school time. The court noted scratch marks on her hands. But she said those were at long time when she was in primary school. The witness was suggested that she got anger management problem, but she denied. She said that she did not assault the accused at that time. The witness admitted there were no injuries with regards to strangulation. The accused suggested if he really meant to kill her she could have easily strangled to death. The defence marked her statement as DEX-1. In that she stated "After while my husband, whom I didn't realise was standing out of the bath room came over to me and strangled my neck as if to kill me. My husband's intention was to kill me as this is not the first time since he had done this to me including threatening words". In this statement she did not state that she fell down. Further in this statement she has stated "I then told her as to why she is calling my husband's number late at night. I got wild and I ended up telling her the word"Bitch"." The defence suggested that the victim has anger management problem. This statement itself shows that she was very volatile at that time. Further in this statement that she had not mentioned that the lady of other side swore at her. In open court, the court noted that witness seems to be aggressive). In her evidence she was questioned "There is nothing in your statement, what has happened in that night?" Her answer was "I have given, No body forgets. First time ever happened." But in her police statement she said "...this is not the first time since he had done this to me including threatening words". This is a contradictory statement and her evidence she said this is a first time, but police statement she said this is not the first time. 

 [17] PW2-Ajay Kumar; Ajay said he lives in Nadawa for past 16 years. He stays with his parents, his family and brother. He admitted that he has neighbours around the house. On 25 the September 2009 at about 8.30 pm he was at home. He said he was with computer and his mother called him and said something going on opposite house. He heard someone screaming "Auntie", Then he went to the gate of opposite house it was locked. He said "the gate was locked, door was opened, and lights were on living room. Inside the porch from gate to door less than 10 metres, I saw clearly, the victim was on the floor, her husband was holding her neck, she was chocking and I shook the gate, he saw me. I said "hey", then he stood up and went inside, then my mom called me, I went home".

[18] In cross examination witness said the accused's dogs were chained and they did not bark. He said that he could not say that the accused opened the gate. He says he has nothing to lie and he is good terms with neighbours. He admitted after the incident that his mother called the police. The witness said after this incident that accused had assaulted him and his wife and his wife was injured. This witness's statement tendered as DEX-2. He read the statement and he refreshed his memory. The witness confirmed contains of this statements. In that statement that witness has said to the police "I saw my neighbour Fariya was on her knees and the husband was on top of the wife trying to stop the wife shouting by holding both hands on the wife's neck...My house is just 15 yards from Fariya's house, and it is very clear to see my neighbours house". In this statement he did not say that he came to the gate. It is understood that he saw the incident from his house. But in his evidence he says that he came to the gate, he shook the gate, said "hey" and the victim was lying on the floor. The evidence is contrary inter se and per se. Then prosecution closed its case. 

[19] The defence suggested No case to answer, but court on the face of evidence held that prima facie case has been made against the accused and defence was called. The court adjourned for lunch break. When this matter was called for the defence, defence suggested scene visit, Prosecution did not object, but victim said that she will participate the scène visit but will not enter the accused house. Then Court visited the scène.

[20] According to the court visit, it revealed the PW2's house is situated from 50 metres away from PW1's house and not the 15 yards as he mentioned in the statement. Two dogs came barking. The accused's house's fence is visible and sees through. When one sits the gate point, he cannot see inside as the grill is not visible. Whatever at the gate point no one can see the floor. At the scene visit, the PW2 said that he first went around the fence and finally came to the gate point. But this is out from the evidence and I ignore it. 

[21] Then defence closed and they were given to time to file written submissions. Then they filed no case to answer submissions. Prosecution was given time to file written submissions. But they never filed the reply. I draw my attention to the defence submission as well. They said that;

1.1	Upon the site-visit, it was obvious that the second witness, Ajay Kumar, could not have been able to see the interior of the house where the incident allegedly took place. ( As court noted, this was confirmed in the scene visit)

1.2	On this basis alone, his evidence is entirely unreliable.

1.3	As for the complainant's evidence, it is submitted as follows:

(a)	The complainant in her statement told the Police that she was strangled. There were no other complaints as assault on any other part of her body.( but According to the Medical Report, which was marked as EX-1, Para D-12, there were two minor injuries. Those are "Bruises right shoulder and bruises chin". This does not tally with the strangulation. Court notes in her evidence she did not say any assault. 

(b)	 The Summary of Facts only makes reference only to attempted strangulation.

(c)	 In her evidence the complainant gave evidence that the Accused tried to strangle her.
(d)	There is no independent evidence of this. It is simply a case of the complainant's evidence against the Accused's word.

(e)	The medical examination does not show any injuries consistent with attempted strangulation. In fact the complainant was not examined as to any injuries to her neck area.

(f)	The complainant did not go to do her medical the same day but waited for the next day.

(g)	The complainant admitted that she did inflict injuries to herself on a previous occasion. It is submitted that the complainant evidence has been discredited and as per the rule in Practice Note of the Queens Bench Division (1962) AII ER 448, no, reasonable tribunal can safely convict on the evidence so far laid before.

 Burden of proof

[22] 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.

[23] 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 an opinion that they are guilty. If you have any reasonable doubt as to whether the accused 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 reasonable doubt about the guilt of the accused."

[24] 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), 

"A fact is 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.

[25] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 

Analysis of the evidence

[26]The defense has said there was no case to answer. In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said she was strangled by the accused. To prove this charge as I noted to elements are to be proved. The first one is committing an assault, and the second is occasioning actual bodily harm."

[27] But in this case medical was tendered to prove that the victim was assaulted. But injuries are contrary to the evidence and does not support not at all. The defence suggested this is a fabricated story over the argument. The prosecution tendered Ex-2, the accused's statement and it shows that there was an argument over the telephone call. But he denied any physical assault. In Question 15 he said "Did you touch any part of her body or around the neck or shoulder during this argument? Answer; Yes around the shoulder. This will prove the medical, but no strangulation. 

[28] It is to be noted that the accused has no burden to prove his innocence. But the prosecution is to prove its charges beyond reasonable doubt. As I earlier noted, there were several inconsistencies. On top of that she admitted that in her school days she inflicted injuries. In her evidence she said it never happened earlier, but in her police statement she said "...this is not the first time since he had done this to me including threatening words". After this incident she had left the home they are living separately. Court notes there are material inconsistencies both PW1 and 2. PW2's evidence has no weight. This charge need not be corroborated by other evidence and the prosecution can go (prove) with a single witness. But that evidence should be firm. In this instant case, as I earlier noted, there are several discrepancies. Mainly, medical does not support the PW1's evidence. This is a serious charge and it is unsafe to convict the accused on available evidence. I hold that prosecution has not discharge its burden beyond reasonable doubt. I therefore acquit the accused. 

[29] 28 days for appeal

On 11th October 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate