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State v Prasad [2012] FJMC 173; Criminal Case 17.2012 (25 July 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

CRIMINAL CASE: - 17/2012

STATE

VS

ALVIN PRASAD

For Prosecution; - Sgt Lenaitasi

For Accused: - In person

Date of Hearing: 19 July 2012

Date of Judgement: 25 July 2012

Judgement

[1] The accused is charged with two counts of Indecently Annoying Person. The charge reads as follows.

CHARGE

First Count

Statement of Offence (a)

[2]

INDECENTLY ANNOYING PERSON – Contrary to Section 213(1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [a]

ALVIN PRASAD, on the 18th day of December 2011, at Nasasa, Navua in the Central Division, with intent to insult the modesty of UMLESH PRASAD, uttered words such as 'fuck you, mother fuckers, tum se magta lare, jaan se mar dega; I want to fight with you and I want to kill you, intending that such words be heard by the said UMLESH PRASAD.

Second Count

Statement of Offence [b]

[3]

INDECENTLY ANNOYING PERSON – Contrary to Section 213(1) (a) of the

Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

ALVIN PRASAD, on the 19th day of December 2011, at Nasasa, Navua in the Central Division, with intent to insult the modesty of UMLESH PRASAD, uttered words such as 'fuck you, fuck your mother, fuck your wife and fuck your daughter, intending that such words be heard by the said UMESH PRASAD.

[4] Since the accused pleaded not guilty for both counts this was set down for trial.

SUMMARY OF EVIDENCE

[5] At the trial, prosecution called only one witness, the complainant in this case.

PW 1-Umlesh Prasad; He is the complainant in this case. He said on 17/12/2011 they had a ritual in their house for his grandmother. The accused came to the function and made trouble. He was drunk at that time. The accused came around midnight and he said to the complainant "Fuck you, Maichod". There were lot of people at that time and the complainant felt very bad about that. After that the accused went away. On 19/12/2011 the accused came to the complainant's house and again swore at him saying the same words. Then the complainant punched him.

[6] In his cross examination by the accused, the complainant said on 18/12/2011 there were Sumana Lata and Mohini Lata at the function but they were inside the house. The complainant tried to report the matter to the police but the phone was not working in the police station and he reported the matter only on 19th around 0930 hrs.

[7] In his re- examination the complainant said the first incident happened around
0200hrs on 18/12/2011 and second happened around 0830 hrs on 19/12/2011.

[8] The prosecution with the consent of the accused tendered the Interview notes and the charge statement of the accused and they were marked as Ex-1 and Ex-2 .

[9] Thereafter the prosecution closed their case. Since there was a case to be answered the accused was given the rights under sec 179 of the Criminal Procedure Decree and he opted to give sworn evidence. He also called some witnesses on behalf of him.

[10] DW1- Alvin Prasad; The accused in this case. He said on 17/12/2011, he went to the complainant's house. There the accused was drinking kava and laughing. The complainant was angry with him because of that and asked him to leave the place. Thereafter the accused left the place. But the accused did not say anything. On 19th the accused was going to the auntie's house for breakfast. As he was passing near the complainant's house he came out and hit the accused. Then Sumana Lata came and saved him. Later the accused went and made a complaint to the police about the assault.

[11] In his cross examination he said even though on 17th he was at that place he was neither drunk nor uttered the swearing words. The complainant asked him to leave the place. On 19th too he did not say anything to the complainant but the complainant assaulted him.

[12] The accused in his re-examination reiterated that he did not say any swear words on both occasions.

[13] DW2- Sumana Lata; She said on 17th they had a ceremony and the accused was there drinking Kawa. The complainant came to that place and he was angry. On 19th the accused was going to the aunt's place when the complainant assaulted him. The DW 2 said the accused never swore at the complainant.

[14] In cross examination the DW2 said on 18th she was at the shed but the accused did not come there. On 19th she saw the accused going to the aunt's place and saw only the complainant's hitting the accused.

[15] DW3- Mohini Lata; She said on 19th when the complainant's was hitting the accused she came and saved him.

[16] In cross examination she said on 17th she was at the shed and the accused was there too. Since the complainant was angry they told the accused to leave the place.

[17] Then the accused closed his case. Both parties informed that they did not want to file written submissions in this matter.

THE LAW

[18] The accused is charged with two counts of Indecently Annoying Person. The Section 213(1) (a) of the Crimes Decree No. 44 of 2009 provides that.

(1) A person commits a summary offence if he or she, intending to insult the modesty of any person: —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

[19] Therefore the elements of the offence of INDECENTLY ANNOYING PERSON are:-

(1) A person intending to insult the modestly of another person

(2) utters any word, makes any sound or gesture, or exhibits any object,:

(3) Intending that such word or sound shall be heard, or that such gesture or object shall be seen by the other person

[20] I now turn to the question of burden of proof in this case. 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, it should be given to the accused.

[21] 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 doub.. 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 the guilt of the accused."

ANALYSIS OF THE EVIDENCE

[22] The accused is charged with two couf Indecently Annoying Person. The prosecution called only tnly the complainant as a witness to their case.

[23] The prosecution also marked the interview notes of the accused. The accused in the interview denied swearing.

[24] I believe this case has to be decided on the credibility of the parties since the prosecution did not call any other eye witnesses to the incident.

[25] Therefore I will look in to the both parties evidences.

[26] The complainant said on 18th morning and the 19th morning the accused swore at him. The prosecution chooses not call any other witnesses.

[27] The complainant's said even though this incidents happened on 18th and 19th he made a report to the police only on the 19th morning. He said when he tried to call earlier the police the phone was not working. He managed to make a complaint only on the 19th. I am satisfied with his explanation of belated complaint to the police.

[28] The complainant said on 18th accused was in the function and he was drunk. Even though the accused denied being drunk t he admitted drinking Kawa. The witnesses for the accused said on that night the complainant was angry with the accused and they asked him to leave because of that.

[29] Even though the accused in his evidence said the complainant was angry because he was laughing in the function I can't accept that. It is hard to believe that the complainant would get angry only because of that and asked the accused to leave. It is more probable that the complainant asked the accused to leave the place because the accused was drunk and he was swearing at him.

[30] The accused said on 19th while he was going to the aunt's house the complainant assaulted him. The complainant also admitted that. But he stated that he did it because the accused was again swearing at him on that day. Even though the accused denied swearing I am inclined to believe the complainant. It is hard to believe a person would assault someone without any reason.

[31] The defense witnesses for the accused are his relatives. The DW1 said she saw the complainant assaulting the accused on 19th. But she said on 18th the accused was not at the shed. But the DW3 said the accused was there on that day. They both denied the accused swore at that complainant but I can't accept that considering the above mentioned reasons.

[32] All the witnesses agree on that night the complainant was angry with the accused and asked him to leave the place. The function was for the complainant's grandmother and the accused is also a relative of the complainant. Why would the complainant get angry and ask only the accused to leave the function? I can't accept the accused's version that was because he was laughing.

[33] Now I will turn to the demeanor of the witnesses in the court. Since the prosecution informed that they were going to call only the complainant I gave special attention to the way all the witnesses were giving evidence in the court.

[34] I found the complainant was really confident and clear about the way he described the events. Even though the accused tried to discredit him in the cross examination he maintained his position. On the other hand the accused was not that confident and sometimes even evasive too when answering the questions.

[35] Therefore I do not see any reason to doubt the prosecution's evidence even though they called only the complainant.

[36] I find that the prosecution has proved the case beyond reasonable doubt against the accused.

[38] I find the accused is guilty for the both counts of Indecently Annoying Person contrary to sec 213 (1) (a) of the Crime Decree. I convict the accused accordingly.

28 days to appeal

25/07/12

H. S. P. Somaratne
Resident Magistrate