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State v Verma [2012] FJMC 183; Criminal Case 253.2011 (1 August 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

CRIMINAL CASE: 253/2011

STATE

VS

NIRBHAY SINGH VERMA

For Prosecution: - Sgt Lenaitasi
For Accused: - Mr. Jasveel Singh

Judgement

[1] The accused is charged with the two counts of Common Assault. The charge reads as follows; (Since the complainants and some witnesses are juveniles I have suppressed their names)

CHARGE:

Statement of Offence [a]

[2]

COMMON ASSAULT – Contrary to Section 274 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

NIRBHAY SINGH VERMA, on the 08th day of October 2010, at Rampur Primary school, Navua in the Central Division, unlawfully assaulted X.

Statement of Offence [a]

COMMON ASSAULT – Contrary to Section 274 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

NIRBHAY SINGH VERMA, on the 08th day of October 2010, at Rampur Primary school, Navua in the Central Division, unlawfully assaulted Y.

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

SUMMARY OF EVIDENCE

[4] At the trial, the prosecution called following witnesses.

PW 1-Miss X; She is one of the complainants in this case. She said she is 10 years old and in Rampur school. On 08/ 10/2010 she was in school. That day it was Fiji Day celebration and they were in the assembly. The PW1 was talking to a friend when the headmaster (accused) called them. He slapped the PW1 on her left cheek. Then he took them to the office. After the school the PW1 told the incident to her mother. The mother came to school and after that they made a report to the police and a doctor checked her. The PW1 further said after the slapping her teeth were aching. (The medical report was marked as EX-1)

[5] In her cross examination by the learned counsel for the accused the PW1 said they reported the matter to police only on Monday and she reported that on her own will.

[6] There was no re-examination of the PW1.

[7] PW2- Sunila watti; She is the mother of the PW1. She said on 08/10/2010 the PW1 came back from school and told her that the headmaster had slapped her. The PW2 went to see the headmaster. She asked the master the reason for slapping her daughter and he told her these were small matters. She said Saturday and Sunday she was in her home and reported the matter to the police only on Monday.

[8] In her cross examination the PW2 was shown a letter to withdraw the charge and it was marked as Defence Ex-1.

[9] In re-examination the PW2 said they were blamed for the incident and she then signed a withdrawal letter prepared by a teacher.

[10] PW3-Miss Y; She is the other complainant in this case. She said she is also in Rampur School and on 08/10/2010 the headmaster also hit her. She said after hitting Miss X on her left cheek his hand slipped and hit her on the chest. After that the accused took them to his office. The PW3 also went home and told about that to her mother. Then later they reported the incident to Navua police station and the medical examination was conducted on her. (The medical report of the PW3 was tendered as EX-2).

[11] In her cross examination she said after the incident she reported that to the police on her free will.

[12] There was no re-examination on PW3.

[13] PW4- Nita Kumari: She is the mother of PW3. She said on 08/10/2010 her daughter came and told her the head master smacked her on the chest. Then they went to the police and later the hospital.

[14] In cross examination she was also shown withdrawal letter and the defence marked that as Defence EX-2.

[15] In her re- examination she said since all were blaming them she signed the withdrawal letter.

[16] PW5- WPC 3635 Sharoon; The caution statement was tendered and marked as EX-3. The defence did not object marking that.

[17] Thereafter the prosecution closed their case. Since there was a case to answered the defence was given the rights and the defence called their witnesses.

[18] DW1- Mr. Verma; The accused in this case. He said on that day he was in Rampur school. They were having the Fiji Day celebration. He saw some children talking and he went to them and called them to the office. He never slapped the PW1 or touched the PW3. The accused further said because of this incident he has been suspended from his work.

[19] In his cross examination he said he's got 27 years of teaching experiences and on that day he was keeping an eye on the students. He never slapped anyone.

[20] The accused in his re-examination said he touched the right cheek of the PW1.

[21] DW2- Jofilit; The dw2 is a dentist by profession. He said the PW1 attended his clinic on 12/10/2010. She was complaining about pain. The DW2 examined her but only noticed her tooth. There were no injuries. The pw1's patient card was marked as Defence EX-3. The DW2 further said if there was any blunt force there should be marks and he could not notice any on the PW1.

[22] In his cross examination he said from the PW1's mother he got to know about the assault and since there were no injuries he did not write it down.

[23] In re-examination the DW2 said if there were any injuries he would have noticed.

[24] DW3- P; He said he is in Rampur school and on that day they were talking. The accused called him, PW1, Pw2 and another Fijian boy to the headmaster's office and nothing happened. He further said he knows the PW1 well and they were in the same class.

[25] In cross examination he said he did not see anything happening that day.

[26] In re-examination the DW3 said they were closer and did not see the accused slapping.

[27] DW4-Q; He said he is in Rampur School and on that day they were talking. The accused asked them to go and sit in the office. The accused then wrote their names.

[28] In cross examination he said he went first and did not see what happened behind.

[29] In re-examination the DW4 said they all were close to each other.

[30] DW5- Vatisera; She said she is a school teacher and at that time the accused was the head master of Rampur. On that day they were having Fiji day celebration and some students were talking. The accused told them to stop talking and then he picked 04 students and asked them to go to his office. The DW5 did not see what happened in the office. Later she saw them coming out from the office.

[31] In her cross examination she said she was sitting next to the accused and did not see what happened.

[32] DW6 – Sunil Chandra; He said he was the chairman of the school management board and knows the two girls.

[33] Then the defence closed their case. Only the defence filed the written submission which I have also carefully considered in this case.

THE LAW

[34] The accused is charged with two counts of common Assault. The Section 274 of the Crimes Decree No. 44 of 2009 provides that.

"A person commits a summary offence if he or she unlawfully assaults another person".

[35] Therefore the elements of the charge of COMMON ASSAULT are

(1) A person unlawfully

(2) Assault another person.

[36] I now turn to the question of burden of proof. 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.

[37] 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 doubu>This mhis 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 reale doubt as to whether the 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&#160t the the guilt of the accused."