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State v John [2012] FJMC 7; Criminal Case 939.2010 (1 February 2012)

IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.939/2010

STATE

VS

HAROLD JOHN

Sergeant Volavola for the state
The accused present and appeared in person

Judgement

[1] The accused is charged with the offence of Indecently Annoying Modesty of Female. The charge read as follows;

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

HAROLD JOHN on the 1st day of August 2010, at Nasinu in the Central Division uttered indecent words namely in Hindi "MUNI HUM MANGTA TUMSE PYAR KARE" meaning "LADY I WANT TO MAKE LOVE TO YOU" intending that such words shall be heard by the said UMA WATI.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 17th October 2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Uma Wati; in her evidence, she said that she was married with three children and her parents had died. Her husband also died before seven years. At the time of incident, she was alone at the home. On 01st August 2010, at about 3 am mid night, one Harold came and knocked her door. He was residing the same settlement. They are not known and not in talking terms. She said "I was sleeping, I heard somebody knocking the door; I have seen him with the help of the torch. The accused then said "I am Harold, can you open the door"...the door was closed, within the door hole, I managed to see the accused...I saw him... Then, he went away. When he was going, he said "I am in love with you". I was happy what he said. Answering the court, the witness said although she was happy she did not open the door because the accused was drunk and he always drunk.

[6] In cross examination the witness admitted that the accused like his son and she like his mother and he was shamed about this complaint. The accused suggested that he never did this offence, but witness said "He came". The accused suggested for last 5 years, he is not staying in that settlement and his mother died recently. The witness admitted that also. The accused further suggested due to this false complaint, his family was shattered. The witness said "What has he done, he has to pay for it". The witness admitted that she and her son asked $1000 as compensation from the accused to settle this matter. The PW1 further cross examined "You make a false complain?" But witness remained silence. She said that this was the first time she experienced these type of thing.

[7] PW2: Shael Kumar Sudhakar; He said the complainant is his mother and he lives with her at Wainimorama settlement. He said on 01-08-2010 at about 2am he was in grog party at his friend Gopal Raj's place. When he came, he was told at about 3.30am the accused came to his mother's place and knocked the door. He said Harold had drinks with him then they took the advantage while he was not at the home they went to see her mother. He said that they mean Harold and Sanjay, Gopal Raj's son. The witness said this is not the first time, previously the accused was severely warned. On the same day noon about 2.30pm, police came but the accused was still under the influence of liquor; witness said. Then, police took the accused to his mother and the accused asked forgiveness from his mother. Mr. Jim, police officer did not take any action to prosecute the accused.; Witness further adduced; this is a serious charge so they wanted to proceed with the case and after several attempts they manage to give a statement and filed this case.

[8] On cross examination, the witness admitted that he has police reports on Forgery and fraudulent conversion. He strongly denied that he was demanding the accused $1000 to settle this case. He said the fact is false and he did not ask any money. The witness also said Sanjeev also knocked the door on that day. The witness admitted there was an allegation for cheating when he was in RB Patels in 2002. He was suggested he lodged this allegation for money, but witness denied it.

[9] Interview notes and Charge Statement were tendered by consent of the accused as Ex- 1 and Ex-2.

[9] After that prosecution closed their case. Since there was a case to answer, the accused was explained and given his rights to call the defence. Then the accused opted to give sworn evidence.

[10] DW1- The accused: Harold John: The accused said on that night there was a gathering. One of his cousins came from Australia and they had a few drinks. After, they started drinking grog in his uncle's place. The PW2 was also in drinking grog. He gave some money to him to bring grog. After that he came out side to urinate. The he fell down and he said he was sleeping under a coconut tree. Then, uncle's son came and woke him up and he was taken to his house., next morning, he heard this allegation. Police came to his place and asked not to go Uma Wati's place again. He went to his house. Later, his mother called him and said that Uma Wati's son demanding $1000. The PW2 is a convicted man and if he gave this money, he will come always behind him demanding money. The accused said the Uma Wati's house is situated next to his mother's house. He deny the charges and further said because of this false allegation his family life was shattered.

[11] In re examination the accused said the Pw1 was alone for 7 years and he stayed adjacent house. Those days he was not married and PW1 was much younger than this. He said if he really wanted to go there and have sex, he could have ample chance to go. But he did not go. The accused said this is made up story. He said he got a good previous character and he has not done this.

[12] DW2-Sanjay Raj; this witness said the accused was with him on that day and he was drunk. At about 4am he took him to his mother's house and he went home straight he did not go anywhere.

[13] In cross examination the prosecution suggested the witness was lying to court and bias to the accused, but the witness denied it.

[14] DW3-Govind Raj; this witness also confirmed that the accused came and had grog in his place. He said he knew the accused since his birth and he is a good character of person. He also treats his daughters like sisters; witness further said.

[15] In the cross examination the witness said they started drinking after grog. It went till 4.30am.he said he is not lying to the court.

[16] Then the accused closed his case.

The Law

[17] The charge is INDECENTLY ANNOYING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009. I reproduce the section for clarity.

213. — (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

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year"

[18] Elements of the charge of INDECENTLY ANNOYING ANY PERSON: are (1) intending to insult the modesty of any 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 such person, (4) intrudes upon the privacy of another person by doing an act of a nature likely to offend her modesty.

Burden of proof

[19] 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.

[20] 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 doubtmust be satisfied so that you feel sure of the guilt of the accused persons before you expan opinion that they are guilty. If you have any reasonable doubt as to whether the accusedcused 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 guilthe accused."

[21] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 New Law Reports 313 Lank>

"A p>"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[22] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[23] In line with the above guiding principles, now I evaluate the evidence adduced before me. PW1 on her evidence said that she saw the accused through key hole and he was telling "I am Harold, can you open the door"and "I am in love with you". She said while she heard that, she was happy but did not open the door because he was drunk. This word did not annoy Uma Wati at all and it was not made intending to insult her. The PW1 said that her son demanded $1000 from the accused. The PW2, her son in his evidence rejected this piece of evidence and vehemently said he did not ask any money. The accused is an Electrical Engineer and he has a capacity to pay this amount. He said if he paid this they will be no end of demanding since he is convicted person. PW1 and PW2 contradicted each other. This is a vital contradiction and it shows the ulterior motive of the complaint. Apart from PW1's evidence there are no eye witnesses. Anyway, Law does not require any corroboration or eye witnesses for these types of cases. The charge sheet says that the accused said "MUNI HUM MANGTA TUMSE PYAR KARE" meaning "LADY I WANT TO MAKE LOVE TO YOU". But in her evidence she did not say that he approached and asked sex, she just said "I am in love with you". This is two different meaning and the evidence did not support the charge sheet. That itself the elements of charge fail. It is suspicious that this story was concocted to get money from the accused. This further strengthen that PW1 said she experienced this for first time, but PW2 said this not the first time the accused was previously severely warned. Here again they contradicted each other.

[24] On the other hand the accused gave sworn evidence. He said because of this case his marriage has been shattered. He denied the charge. He said he has good previous character and he is not a person to do such a thing. His version was supported by two other defence witnesses. As I earlier noted, the burden to prove charges beyond reasonable doubt is vest on the prosecution. It should be probable story and any doubt of the story should go to the accused. The accused is presumed to be innocence and until his guilty is proven beyond reasonable doubt. I hold, according to the evidence, it is unsafe to convict the accused.

[25] I therefore acquit the accused.

[26] 28 days to appeal

On 01st of February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate