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State v Sharma [2011] FJMC 143; Nadi Criminal Case 262.2011 (28 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI

Nadi Criminal Case No. 262 Of 2011

BETWEEN:

STATE

AND:

UMA DUTT SHARMA

Insp. Gosai for the prosecution
Messrs. Stephan, Nand N & V Naidu for accused
Date of Hearing: 21.11.2011
Date of Ruling: 28.11.2011

RULING
[On no case to answer]

THE APPLICATION

1. This is an application by the defence counsel under Section 178 of the Criminal Procedure Decree, No.94 of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the Accused to his defence and as a result the Accused should be acquitted.
   
2. The defence further submitted that we have to consider section 162 of the Criminal Procedure Decree as a whole. The charge is Assault Occasioning Actual Bodily Harm. No expert evidence even to prove bruises.
   

PROSECUTION'S RESPONSE

3. It was submitted by the prosecution that:
   
   1. That in light of evidence adduced the prosecution has proven each element of the charge.
      
   2. That PW1 and PW2 positively identified the Accused person by recognition and/relationship and both witnesses gave sworn evidence in term of assault. PW1 said she was punched by her husband, the Accused while PW2, her 14 years old daughter witnessed the punch.
      
   100. That in light of the decision of State v. Ram [1974] minor contradictions between the witnesses such as punch on the arms and the shoulders should not be considered.
        
   4. That in any event there is sufficient evidence to convict the accused for a lesser offence in terms of section 162 of the Criminal Procedure Decree.
      
   5. That the prosecution's evidence proved the elements of the offence of "Assault Occasioning Bodily Harm"/"Common Assault" therefore it has established a prima facie case.
      

THE GOVERNING SECTION

4. The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads:
   

"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".

THE CHARGE

5. On 17 March 2011, the accused was formally charged with:
   

Statement of Offence (a)

ASSUALT OCCASIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Decree No.44 of 2009.

Particulars of Offence (b)

UMA DUTT SHARMA on the 28th day of February 2011 at Nadi in the Western Division assaulted SHANTI DEVI thereby occasioning her actual bodily harm.

THE CHARGING SECTION

6. Section 275 of the Crimes Decree enacts:-
   

"275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm".

The prosecution must prove four elements for the charge AOABH: (i) that the Accused, Umah Dutt Sharma, (ii) committed an assault (iii) occasioning actual bodily harm (iv) to the complainant, Shanti Devi.

THE LAW

7. The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.
   

"It seems clear 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 prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does 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 or evidence can never be enough nor can any amount of worthless discredited evidence."

8. In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.
   
9. Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:
   
   1. When there is no evidence to prove an essential element in the alleged offence;
      
   2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
      
   100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
        

The evidence

10. The prosecution produced 2 witnesses and produced Exhibit 1 to Exhibit 4.The application for no case to answer would be determined on the evidence so far laid before this court. I would therefore state what each witness has testified.
    
11. The first witness was Shanti Devi, the complainant in this case. She testified in examination in chief as follows [Shanti Devi's statement to police was tendered as evidence marked as Exhibit 1 with the consent of the Defence. in her statement made on 3rd March 2011 she states]:-
    

"I am residing at above mentioned (Shortlane Namaka) for past 14 years with my family and I am legally married to Dr Uma Dutt Sharma and had 2 children. I am studying at University of Fiji in Lautoka.

I can recall on 28th February 2011 at about 5.30pm my daughter namely Divya Sharma 13 years schooling told my husband that her School shoes was broken. When my husband shouted to my daughter "Divya bring the shoes Michaud" then my daughter told my husband that she won't bring the shoes the way my husband was talking her. Then my husband came out of his room and went to my daughter's room and threatened her that if she was small he would kill her. And my husband got hold of my daughter's hair and I was in the kitchen and went towards daughter's room and told my husband not to pull daughter's hair. As I went to save my daughter my husband started to punch me. He gave me about 3 punches. First punched on my stomach and also on my shoulder and keen (knee) and swore at me by saying "Michaud kutiya" which means Mother-Fucker. Then I told my husband that I will take my children for counselling that you are abusing them and threatening them. This incident happened on 28/02/11 and I cannot come to lodge a complaint as my husband didn't allow me to go out. He always follows me wherever I go. That's why I didn't come but somehow I came to Namaka Police Station to lodge a complaint and I want the Police to charge him as it's not the first time he did to me, he used to abuse me and threaten me and my kids everyday and we fear for our life".

12. Under Cross Examination Shanti Devi testified and stated as follows:
    
    • I just went through my statement and signed
    • I told police where I was assaulted
    • She denied that her husband was not at home at 5.30pm that day-28/02/2011 and told incident happened at 5.30pm.
    • She said that she read her statement carefully and nothing further to be added to the statement.
    • She admitted 28.02.2011 was a Friday and 03.03.2011 was Monday
    • She told that she went to police on Monday when the incident was clear in her mind.
    • She told she can't remember which hand he used.
    • She admitted that he assaulted on her shoulders.
    • She also admitted that shoulder is different from arm and arm is different to hand.
    • When suggested that she told to police about arm, hands and bruises she said "No"
    • She did not know she can change her statement
    • She said that she is a tertiary student and understands English and read the statement with the word 'shoulder'
    • She Knew that police will charge him on her statement and she wanted him to be charged
    • When suggested that she was not assaulted on her shoulders she said 'I was'
    • She further said that he punched on three occasions kicked me on my knee but admitted 'kick' is not in her statement.
    • Denied that she put spices in her statement
    • She said she knew Veremo and admitted that he spotted her out side. She denied that he rubbed her. When it put that 'you said don't do that everybody is watching' she told 'that's lie'.
    • Denied that she made up the all incidents.
    • Denied that she is having affair with PC Anulesh.
    • Admitted that she complained to Commissioner and she was interviewed by the Commissioner over her husband abusing her daughter.
    • Told that she took her daughter to police station. She did not listen to her daughter was interviewed and said that she was sitting outside.
    • Admitted that her husband complained to Commissioner of Police and said she can't recall whether she was interviewed by the Commissioner on 02.03.2011. She admitted that the very next day she reported to police.
    • She said she took her daughter to police station on 04.03.2011.
    • When put that "it was a lie". "You fabricated to send your husband out of the house". She replied 'No'.
      
13. In Re-examination PW1 stated that she had a copy of her statement with her. The allegation that she has affairs with PC Anulesh was made after her complaint. Bailiff Veremo spoke to me next to my house.
    
14. Next witness for the prosecution was PW1's daughter PW2 gave sworn evidence. In the

Examination in Chief PW2 stated that:

"Since birth I am there. I study in Form 3. My father is Dr. U. D. Sharma. He's in Court today. Witness points the Accused. My mother is Shanti Devi, she's here today.

28/02 I recall at 5.30pm I was at home. My mother, my father and my sister were there.

I attended to school that day, I returned home at about 4.30pm by car, my father's car. My father drove. At 5.30 an incident took place. My father was removing his shoe. My father swore at me "maichod". I told him why did swear at me and I went into the room. He said this in Hindi – I know the meaning – mother fucker.

Then my father came to my room and swear at me "maichod, kutia" (female dog), "moti" (fat) in Hindi

If you were small I will kill you by now. He started pulling my hair on the top of my hair – shows – using her right hand.

My mother came from the kitchen and told my father not to pull my hair. She will take me for counselling. Kitchen is 6m away approx (the witness says the distance could be like between the witness box and the accused box). It's an open kitchen.

From my room I can see the kitchen – when somebody in the kitchen I can see.

Then my father started swearing my mother by saying "maichold, kutia" and started assaulting her. 1st on the stomach, then on the both hands – indicating on the upper arms – also kicked on her leg – somewhere above the knee. I was frightened and started crying – no injury at that time. After one or 2 days I noticed.

He still asked me to go to shoe shop. I went with him on my way he swear at me. Myself, sister and father went to repair the shoe – we walked – shoe shop is near our house – we came at 5.50 – we all returned. After that my father was at home that night he did not go anywhere. The person who assaulted and abused me is in Court".

15. Under Cross Examination PW2 stated that:
    
    • She is concerned of her mother
    • She did not look at her statement today but had copy of her statement at home
    • She said she signed her statement.
    • Her mother was sitting beside her when she made the statement to police at police station.
    • She remembered clearly the incident and told to police everything that happened without any omissions.
    • We discussed yesterday what to tell in court. Her mother told her to tell what she (her mother) told to police. She said that her mother told her to recall the incident and tell. She witnessed the incident.
    • She said that her mother is happy what she would say in court because she has done a good job to her mother.
    • She said whole of her statement is correct. She has told everything to police she signed her statement at 6 o'clock on 4.3.2011.
    • When put that there is nothing in her statement that her father hitting on her hands she said 'yes'. She admitted that she told police he hit on her arms but did not say which arm.
    • When suggested that 'Kick on the knee is not there' she said 'yes' and said that she told to police both arms. She is telling the truth. She did not say both arms to confirm what her mother said.
    • She told that her father took her to the shoe shop to repair the shoe. It took 15 minutes-later it is about 5 minutes. They gave the shoe to be repaired and returned. She also said that police asked about the shop.
    • She told she knew Verema. Her mother talked to him. Her sister was there.
    • She admitted that she told what she discussed with her mother and told 'I was nervous my mother told what I tell to court.
      
16. By consent Caution Interview of the accused and Charge Statement wherein the accused had denied the charge as fabricated were tendered and marked as Exhibits 3 & 4 respectively.
    

THE DETERMINATION

17. It is for the court to determine whether there is sufficient evidence in respect of each one of element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 187 of the Criminal Procedure Decree 2009.
    
18. The accused has been charged with the offence of Assault Occasioning Actual Bodily Harm to the complainant, his wife on 28th February 2011.
    
19. In support of its case the prosecution has tendered the Statement of the complainant (Original hand written and typed copy)-PW1 [Exhibit 1], the Statement of Divya Shivagini Sharma-PW2 [Exhibit 2], the Caution Interview of the accused [Exhibit 3] and the Charge Statement [Exhibit 4] and the oral evidence of PW1 and PW2.
    
20. The Defence did not dispute identity of the accused because accused has sufficiently been indentified by relationship. Hence will no discuss the first element.
    
21. Assault: The complainant, PW1 in evidence stated that that day at about 5.30pm her husband shouted to her daughter (PW2) "Divya bring the shoe Michod". Then her daughter told her husband that 'she won't bring her shoe the way my husband was talking to her'. Then her husband went to her room and threatened to kill her. He got hold of pw2's hair. She was in the kitchen at that time. She went to PW2's room and told her husband not to pull PW2's hair. At that time her husband started to punch PW1. He gave PW1 about 3 punches. First punch on her stomach and also on her shoulder and knee and swore at her by saying 'Michod kutia'. This incident happened on 28.02.2011. She made the statement to Namaka Police on 03.03.2011 because her husband did not allow to going out and he was following her.
    
22. PW1 told in evidence that the accused swore at her by saying 'Michod' for this the accused was not charged with.
    
23. Under Cross Examination PW1 told that the accused assaulted on arms and hands and had bruises. She admitted that she did not tell this to police. She singed the statement with the word 'shoulder' and she did not want to change or add to her statement. PW1 admitted that arms, hands, shoulders are different parts of the body. PW1 also said that the accused kicked her on her knee but admitted this is not in her statement to police.
    
24. PW 1 in Cross Examination told that she had a copy of her statement at home and also stated that she was out side when PW2 gave her statement. Whereas PW2 told in court under cross examination that her mother (PW1) was beside her when she made statement to police.
    
25. PW2 also gave evidence and in her evidence she stated that her father swore at her on three occasions. First he swore at PW2 from his room by saying 'Michod'. Second time her father came to PW2's room and swore at her by saying 'Michod', 'kutia' and 'moti' and pulled her hair. This time her mother came to rescue and told not to pull PW2's hair. Then her father punched PW1. She said this: "Then my father started swearing my mother by saying "maichold, kutia" and started assaulting her. 1st on the stomach, then on the both hands – indicating on the upper arms – also kicked on her leg – somewhere above the knee. I was frightened and started crying – no injury at that time. After one or 2 days I noticed". At this point I must say PW1 has stated in her statement that he punched on stomach and arm and also her knee. [In Cross Examination PW2 confirmed that hands and arms are different parts of the body]. She still went with her father to shoe shop to repair the shoe soon after the incident and returned at 5.50pm.
    
26. PW2 in the Examination in Chief further stated that she can see the kitchen from her room which is about 6m away from her room (No floor plan was tendered by the prosecution to confirm it).
    
27. In Cross Examination PW2 told that she had copy of her statement made to police. PW2 also told that PW1 was beside her when she made statement to police. I should say here PW1 under cross examination told that she was out side when PW2 gave statement at the police station.
    
28. In Cross Examination PW2 told that she discussed with her mother, PW1 before coming to court what to tell in court and PW1 told PW2 to tell in court what she (PW1) told to police. PW2 told that she went to shoe shop after the incident with her father and returned at about 5.50pm. PW2 said she returned after 15 minutes form the shoe shop. Later said she returned after 5 minutes. PW2 told that the shoe shop was closed to the house. She could not tell the name of the shoe shop. One wonders why PW2 went with her father to repair the shoe soon after he swore at her two times. However, PW1 did not speak of PW2's going with her father to repair the shoe soon after the incident.
    
29. PW1 and PW2 could not tell the court how and which place the accused assaulted. PW2 in Cross Examination told that the Accused assaulted PW1 with hand. However PW2 could not tell which hand he used. PW2 under Cross Examination told she did not see any injury at that time but found after two or three days. PW1 did not complain to police about injury she received as a result of the punch.
    
30. Occasioning Actual Bodily Harm: this is one of the essential elements of the charge. Expert evidence is necessary to confirm actual bodily harm to the complainant (PW1). The prosecution attempted to mark the Medical Report through PW1. This was objected by the defence on the basis that PW1 is not an expert, the report is not signed and sealed by the maker and prosecution cannot mark the Medical Report without calling the doctor. The Defence has given notice to the Prosecution requiring the attendance of the medical officer as a witness. This was denied by the prosecution and they said they did not receive the notice. The defence then produced a copy of the faxed notice dated 1st September 2011 and said this was faxed to DPP's fax number as the Prosecution Office fax number was not working. Prosecution then sought adjournment to enable them to call the doctor. The Defence objected to this application. The prosecution did not make this application in the morning. In the morning prosecution informed the court that they are ready for the trial. They made this application for adjournment in the afternoon at 3.30. The court refused to grant adjournment as it is sought at the eleventh hour.
    
31. There has been no sufficient evidence, documentary or otherwise to establish that the accused occasioned 'actual bodily harm' as a result of the punch.
    
32. PW1 and PW2 planned to give evidence against the accused. They discussed before coming to court what to tell in court. This was confirmed by PW2 under cross examination. PW2 under cross examination confirmed that PW1 told her to tell what PW1 told to police. PW1 and PW2 contradicted each other on the evidence of assault as explained earlier. These contradictions affect the root of the prosecution case. The evidence of the prosecution witnesses has been tainted with contradictions which affects their credibility.
    
33. In my judgment the evidence adduced by the prosecution has been so discredited as a result of cross examination and also the evidence is so manifestly unreliable that no reasonable tribunal could safely convict the accused on it. The court cannot convict the accused even for common assault on this evidence. The accused was not charged for common assault.
    

CONCLUSION

34. In my judgment, I find that a case is not made out against the accused person sufficiently to require him to make a defence.
    
35. I therefore, acting under section 187 of the Criminal Procedure Code No.94 of 2009, dismiss the case and acquit the accused, UMAH DUTT SHARMA, from the charge of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.
    

M H Mohamed Ajmeer
Resident Magistrate

Signed at Nadi on this 28th day of November 2011