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State v Chandra [2012] FJMC 229; Criminal Case163.2010 (25 September 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

Criminal Case : 163/2010

STATE

V

PARESH CHANDRA

For Prosecution : Sgt. Lenaitasi
For Accused : Mr. Shah

JUDGEMENT

[1] The accused is charged with Obstructing police officer in Due execution of his duty contrary to s. 247(b) of Penal Code as first count and resisting Arrest contrary to s. 247(b) of Penal Code as second count. The charge reads as follows;

Statement of Offence [a]

First Count

OBSTRUCTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY:-

Contrary to Section 247(b) of the penal Code, Act 17.

Particulars of Offence [b]

PARESH CHANDRA f/n RAM ASRE, on the 23rd day of August 2009, at Vunaniu, Navua in the Central Division, did obstruct Police Constable Number 4150 FIRASHAD KHAN, whilst in due execution of his duty.

Statement of Offence [b]

Second Count

RESISTING ARREST:- Contrary to Section 247(b) of the penal Code, Act 17

Particulars of Offence [b]

PARESH CHANDRA f/n RAM ASRE, on the 23rd day of August 2009, at Vunaniu, Navua in the Central Division, resisted lawful arrest by Corporal Number 1477 VIJENDRA SINGH, Police Constable Number 3393 KOROI and Police Constable Number 4150 FIRASHA KHAN, in due execution of their duty.

[2] The accused appeared through a counsel and pleaded not guilty for both counts wherefore this was set down for trial.

SUMMARAY OF EVIDENCE

[3] The prosecution called 3 witnesses and tendered 2 documents to the court.
PW1- PC 4150 Firshad Khan; He said on 23/08/2009 he was doing duty with Sgt. Virend, Cpl Koroi. He was operating the radar gun and clocked a vehicle travelling around 97kmph. He stopped the vehicle and showed the driver the speed. In that vehicle there were two other passengers. While the PW1 was booking the driver the accused came out and said in high voice the machine was a shit. Then the PW1 warned the accused to go and sit in the vehicle or otherwise he could be arrested for obstructing the duties. The accused then punched at the PW1. The PW1 booked the driver and went to the vehicle with other officers. The passenger was inside the vehicle. He refused to come out. The police officers used force to bring him out and they took him to the Navua police station and handed over to PC Farook.

[4] He was vigorously cross examined by the learned counsel for the accused. The PW1 admitted in his police statement he did not mention the accused punched at him. After the booking the PW1 went with two other police officers to the vehicle. The PW1 said he could not recall how the accused got injured. The PW1 further said the accused was holding the hand brake at that time but after the court visited the car the PW1 said he was holding to something. The PW1 also said the accused was smelling liquor at that time.

[5] In re-examination the PW1 said that even though the accused threw two punches they did not land on him.

[6] PW2-Cpl Koroi; He was duty with the PW1 and heard one Indian guy calling the PW1 that the radar was not good and it was a shit. Then the PW1 told him to go back or he would be arrested. Later two officers went to the vehicle and told the accused that he would be arrested. The passenger refused to come out. The PW2 also came to the place and saw the Passenger wearing seat belt. When the seat belt was released the passenger came out and they took him to the Navua police station.

[7] In cross examination the PW2 said there were 4 officers doing duty at that time and the PW1 stopped the vehicle. The PW2 saw the accused talking to the PW1. The accused said the meter was a shit. Later the PW1 went to the vehicle with Sgt Virend and told the accused to come out. The accused was holding the seat belt with his two hands. He could not come out because of the seat belt. The PW2 did not see the injuries on the accused and could not recall how he got injured.

[8] In re- examination the PW2 said he remembered putting hand cuffs on the accused.

[9] PW3- PC Farook; The interviewing officer. The interview was marked as Ex-1.

[10] In his cross examination the PW3 said he saw the injuries on the accused and he was not drunk at that time. The medical report was marked as EX-2 and charge statement was marked as EX-3. Thereafter the prosecution closed their case.

[11] The defence called 3 witnesses for their side. DW1- Paresh Chand; The accused in this case. He said on that day he went to Nadi and came back with his driver and his sister. The accused was sleeping. The vehicle was stopped and the driver went to talk to the police. The accused followed them and he was talking to the driver when one police person asked him not to interfere with the work. The accused then went to the vehicle and put the seat belt. Then police came and asked him to come out. The accused could not because of the seat belt. One officer hand cuffed him while another pushed him from behind. The accused received injuries. They took him to the Navua police station and later released.

[12] During the cross examination the accused denied he was drunk and said he did not speak to the police officers at that time. He denied questioning the PW1 or obstructing his duties. He also said he did not hold anything in the vehicle to while police tried to get him out.

[13] DW2- Sakim; He is the driver of the accused. He said on 23/08/2009 he was stopped by the police. The accused was sitting beside him. The police informed the DW2 he was driving at high speed. The accused also came and asked him what was happening and then a police officer told him to go back. At that time the accused did not talk to anyone else apart from the DW2. After the police booked him the DW2 went to the vehicle and saw the police officers holding the accused. The accused was telling them not to pull him. One officer released the seat belt and then they took him to Navua police station.

[14] In cross examination the DW2 said the police officer told the accused not to be there.

[15] DW3- Simla; She is the sister of the accused. She said on that day she was in the vehicle and the police stopped it. The accused went there and then came back and put the seat belt. Later the police came and opened the door and pulled the accused. One officer was pushing from behind and they put the hand cuffs while the seat belt was on. There was no cross examination of the DW3 and the defence also closed their case.

THE LAW

[16] The accused is charged with two counts. First one is Obstructing police officer in Due execution of his duty contrary to s. 247(b) of Penal Code. That section reads as follows.

Any person who:-

(b) assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer; or

[17] Based on the above section elements of this offence are;

1. The accused
2. Wilfully obstruct any police officer in the due execution of his duty
   

[18] The second count is Resisting Arrest contrary to s. 247(b) of Penal Code and the prosecution need to prove the following elements.

1. The accused
2. Resists any police officer in the due execution of his duty.
   

[19] In Woolmington v DPP (1935) AC 462 it was 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".

[20] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonablet. 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 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&#1out the the guilt of the accused."

[21] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the proion. If the evidence creates any doubt, should be given to n to the accused.

ANALYSIS OF THE EVIDENCE

[22] The PW1 said while he was booking the driver, the accused came and told the machine was a shit and not working properly. This was confirmed by the PW2.

[23] The accused rejected saying like that. The DW2 also said the accused did not say such a thing to the PW1.

[24] The PW1 in his evidence in the court also said at that time the accused tried to punch him twice. He maintained that throughout his evidence. But learned defence counsel rightly pointed out that he failed to mention that in his police statement. The PW1 failed to give to this court a reasonable explanation for this vital omission.

[25] The PW2, was also at the scene of the incident. He also said the accused spoke to the PW1. But he did not mention anything about the accused trying to assault the PW1.

[28] Even though there were two other police officers present at that time the prosecution did not call them.

[26] According to evidence the PW1 warned the accused to go back which he complied and booked the driver and only after came to arrest the accused. I find that hard to accept. When a person tried to assault a police officer will he be warned to go back just because the police needs to book another person. Strangely according to the PW1 that's what happened on that day.

[27] Thereafter the police came and arrested the accused. The PW1 said he was holding to the hand brake and then after visiting the scene changed the story. The PW2 said the accused was holding to the seat belt. The PW1 also said the accused was smelling liquor but the PW2 did not mention that. The PW3 said at that time the accused was not drunk.

[28] The accused denied resisting arrest too. He said he could not come out because of seat belt. His evidence was in line with his caution interview and also consistent with his
other witnesses.

[29] As I mentioned in above paragraphs there are major contradictions between the PW1's evidence and his police statement and also with other witnesses for the Prosecution. I believe these contradictions directly affect the credibility of the prosecution's witnesses and leave a doubt about the prosecution's version. This doubt will be given to the accused.

CONCLUSION

[30] Therefore I find that the prosecution has not proved their case beyond reasonable doubt and acquit the accused from two counts.

[31] 28 days to appeal

25/09/2012

H.S.P.Somaratne
Resident Magistrate