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State v Sharan [2012] FJMC 126; Criminal Case1166.2004 (24 May 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE HAC N0: 1166 / 2004

BETWEEN:

THE STATE
PROSECUTION

AND:

SHAILESH KUMAR SHARAN
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Mrs. Lomani for the Prosecution,
Accused in person,
Date of the Judgment: 24th day of May 2012.

JUDGMENT

1. The accused is charged with one count of Act with Intent to cause Grievous Harm contrary to section 224 (a) of the Penal Code Act 17. The particulars of the offence are
   

"Shailesh Kumar Sharan on the 13th day of May 2004 at Suva in the Central Division, with intent to do some grievous harm to Josaia Navualiku unlawfully wounded the said Josaia Navualiku with a pen knife".

2. Accused pleaded not guilty for the offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called 5 Prosecution witnesses and the Accused gave evidence on oaths but did not call any witness for the defence. At the Conclusion of the hearing I invited the prosecution and the defence to file their closing submission in writing. Only the prosecution filed its closing submission but the accused opted not to file any.
   
3. Having considered the evidence presented by the prosecution and the defence and the closing submission of the prosecution, I now proceed to pronounce the judgment of this case as follows.
   
4. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on tcused used at any stage to prove his innocence or to prove anything else.
   
5. Section 224 (a) of the Penal Code Act reads as "Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-
   

(a) unlawfully wounds or does any grievous harm to any person by any means whatsoever".

6. His ladyship Justice Shameem in State v Tugalala (2008) FJHC 387;HAC0025.2008(28 April 2008) held that the main elements for the offence under section 224 (a) of the Penal Code are
   
   1. The accused,
   2. With intent to maim, disfigure or disable any person or do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person,
   3. Unlawfully wounds or does any grievous harm to any person.
      
7. Having considered the main elements of the offence of Act with Intent to cause Grievous Harm, I now turn to briefly summarize the evidence presented by the prosecution and the defence.
   
8. Mr. Simione Sema is the first prosecution witness who gave evidence in this case and stated that he was at the Suva market on 13th of May 2004 and saw one Fijian man and one Indian man were arguing. He stated that both men were close to each other and then started to exchange punches. He then observed that the Indian man couldn't take the Fijian man and used a knife. Mr. Simione stated that he was standing just about 10 meters away from them when they were arguing. He heard that the Indian man blamed the Fijian man for pit pocketing. Mr. Simione positively identified the accused as the Indian man he saw on that day.
   
9. Cpl Beni Maravu is the second prosecution witness who is the arresting officer in this case. He stated that he arrested the accused upon receiving of the report of the incident and took the pen knife into his custody. He positively identified both the accused and the pen knife in the court. He further stated that he visited the victim at the CWM hospital and observed that the victim was on the hospital bed with stab wound on his stomach.
   
10. Cpl Sanjay Deo is the third prosecution witness who conducted the caution interview of the accused person. He stated in his evidence that the accused admits that he stab the victim in his caution interview. The accused did not challenge the admissibility of the caution interview of him as prosecution evidence hence the prosecution tendered the record of the caution interview of the accused as prosecution exhibits.
    
11. Fourth prosecution witness is Cpl Ganesh Kumar who is the charging officer in this case. He stated in his evidence that he charged the accused upon the completion of the accused person's caution interview. The accused again did not challenge the admissibility of the charging statement wherefore the prosecution tendered it as an exhibit of the prosecution.
    
12. The last prosecution witness is Mr. Josaia Navualiku who is the victim of this incident. He stated in his evidence that he accidently bumped into the accused at the bus stand. After he bumped into the accused, the accused started to swear at him. Mr. Josaia stated that then he wanted to approach the accused and inquire from him the reason for his swearing at him. He further stated that there were plenty of people around the vicinity when he tried to approach the accused. He stated that he did not know that the accused had a knife and accused took the knife from his pocket and stabbed him when he tried to approach him. In his cross examination Mr Josaia admits that he was at Terry Walk in the day time and was also in the Terry Walk police post. But he denied robbing an old Indian person and said the police just asked him about the robbery.
    
13. The accused in his evidence stated that he assisted the police to arrest Mr. Josaia for an incident of a robbery at the Terry Walk in the morning of the 13th of May 2004. He then stated that when he was trying to buy a bottle of coca cola he was approached by three Fijian men. He was punched by one of them when he tried to turn around after buying the bottle of coca cola. He then took the knife from his bag which he carries and stabs the person who punched him. In his cross examination he admits his presence at the scene of the incident and also admits that he stabs the victim but further stated that he did so for his self defence.
    
14. Having summarized the evidence presented by the prosecution and the defence, I find the main issue in this instance case is to determine whether the accused exercise his right of self defence or intently stab the victim. The accused did not disput his presence and stabbing the victim.
    
15. In view of the reasons set out above, I now turn my attention to the laws pertaining to the principle of right of self defence.
    
16. The law relating to right of self defence was extensively discussed in Palmer v R (1971) A.C.814) where it was held that "It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is serious so that it puts someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort or peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. Of all these matters the good sense of the jury will be the arbiter. There are no prescribed words which must be employed...in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case of the concept of necessary self-defence. If there has been an attack so that defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...the defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected"
    
    17. Mr. Simone is the only witness who witnessed the incident between the accused and the victim. He stated in his evidence that he heard that the accused blamed the victim for a pit pocketing. He then stated that he saw both the accused and the victim were arguing and then started to exchange punches. Mr. Simone observed that the accused could not take the Victim then he took a knife and stab the victim.
        
    18. According to the evidence of the accused person, he assisted the police to arrest the victim for an offence of robbery at Terry Walk in the morning of the 13th of May 2004. The victim himself admitted that he was at Terry Walk and was also at the Terry Walk Police post. Apart from these evidence Cpl Sanjay Deo who conducted the caution interview of the accused admits in his cross examination that the victim was involved in a robbery and he checked the incident with the Terry Walk police post.
        
    19. Bearing in mind the above stated evidence presented in the court, I find the burden of proof is still rest with the prosecution even at a time a defence of self defence is raised. It was held in R v Abraham ( 57 Cri App. R 799) that "general direction as to onus and standard of proof; then immediately follow it with a direction that in the circumstances of the particular case there is a reason for having in mind how the onus and standard of proof applies and go on to deal...for example...with the issue of self-defence by telling the jury something on these lines:.'Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self-defence. A person who acts reasonably in his self-defence commits no unlawful act. By his plea of self- defence the accused is raising in a special form the plea of Not Guilty. Since it is for the Crown to show that the plea of Not Guilty is unacceptable, so the Crown must convince you beyond reasonable doubt that self-defence has no basis in the present case.' Having done that the trial judge can then proceed to deal with the facts of the particular case. The last thing I seek to do is to lend support to the misconception that any prescribed words have to be used in giving the direction".
        
20. In line with the above mentioned legal principles, the burden of proof is still rest with the prosecution in this case. The accused claimed he stabs the victim for his self defence and the evidence of Mr. Simone confirms that the accused and the victim had an argument and exchanged punches. At this point I take note of the psychical build of the victim and the accused. Moreover Mr. Simone and Cpl Sanjay Deo confirm that the victim was involved in an incident of a robbery at Terry Talk which the accused refereed in his evidence. Apart from these evidence the prosecution tendered the record of accused person's caution interview at part of the prosecution evidence where the accused stated that he accidently stab the victim when he tried to threaten the victim with the knife as he wanted to stop the victim of assaulting him.
    
21. The accused is not required to prove his defence of self defence and only require to raise a reasonable explanation to the charges. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
22. In view of the forgoing reasons, I am inclined to hold that the prosecution has failed to established beyond reasonable doubt the fault element of this offence, which is that the accused person's intention to maim, disfigure or disable the victim".
    
23. I now turn to the third element of this offence that is "unlawfully wound or does any grievous harm to any person". Section 5 of the Penal Code Act 17 defines grievous harm and unlawful wound as follows;
    

"grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense",

"wound" means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane".

24. Having careful perusal of the evidence presented by the prosecution, I find the prosecution failed to establish that the accused unlawfully wounded the victim. Apart from the evidence of CPl Beni Maravu, who visited the victim at the CWM hospital and observed the accused with wound, there is no proper evidence in the form of medical report or any satisfactory evidence to satisfy that the injuries sustained by the victim in this alleged incident falls within the definition stated in section 4 of the Penal Code Act 17.
    
25. In view of the reasons set out above, I find that the prosecution has failed to prove the third element of this offence beyond reasonable doubt.
    
26. Upon considering foregoing reasons, I hold that the accused is not guilty for the offence of Act with Intent to cause Grievous Harm contrary to section 224 (a) of the Penal Code Act 17 and acquitted from the same.
    
27. 28 days to appeal.
    

On this 24th day of May 2012

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.