|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
Criminal Case No. 714/2011
STATE
-v-
RAJESH KUMAR
Inspector Joji for the prosecution
Ms. Miliana Tarai for the accused as Duty Solicitor of LAC of Fiji
RULING ON NO CASE TO ANSWER
1] The accused is charge with following offence;
CHARGE
Statement of offence (a)
ANNOYING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009.
Particulars of offence (b)
RAJESH KUMAR on the 4th day of June, 2011 at Nasinu in the Central Division, with intent to insult the modesty of Premila Chandra Lal, uttered the words "Fuck" and 'Maichod Hai' meaning fuck your mother intending that such words be heard by the said Premila Chandra Lal.
2] He pleaded not guilty to the charge and case was heard on 08-08-2012. At end of the prosecution case the defence made submission of no case.
3] The Prosecution called PW1 – Premila Chandra Lal first. She said that the accused had fought with her and her husband in May or June 2011/ she identified the accused. He scolded them saying "Maichod" (mother Fucker). He also said that "you people cannot harm me". This was heard by her husband and tenant. It happened around 8.30 pm to 9.00pm.
4] In cross examination she told she is not sure about the date. The complainant in the cross-examination admitted the following that:
(a) The offence took place between May to June.
(b) She recalled making a Police Statement a day after the incident occurred.
(c) She was not aware of any case against her husband.
(d) The offence took place at 8.30-9pm because her husband had arrived home at 8pm and then he had gone to speak to the accused half an hour after his arrival. It was during this time that she saw the time.
(e) She was shown her Police statement and she identified and confirmed that it was hers. This Police statement was tendered as Defence Exhibit 1. She stated that she didn't read her statement after the statement was made however she confirmed that the Police had read the statement to her. She was not sure of the date of the offence but she insisted that the Police who took her statement had estimated that the offence took place in June.
(f) She further insisted that the same Police had mistaken the time of the offence and that she had told different information to the Police. She admitted that the Police read her statement to her in English and that she didn't understand what was being read to her.
(g) Both, the accused and her husband were swearing at each other
(h) She admitted that she only reported the matter because the accused had reported against her husband.
(i) She also reported the matter because she was annoyed at the accused's swear words.
(j) The accused had complained against her husband however she did not report the offence on the same day. She had made the complaint the day after the offence took place.
5] It seems the first the witness hid there was report against to her husband on that day. In cross examination, the witness admitted that
"Q: Because the accused reported you (husband), you lodge this complaint? Yes"
6] PW2 was WPC 4133 Litiana gave evidence. Caution interview tendered as EX-1 without objection of the defence. From this witness the defence tendered PW1's police statement as DEX-1 to prove contradictions and omissions (discrepancies).
7] Next witness was PW3 – Sushil Chandra Lal. PW2 is PW1's husband. he stated that he was in Court to give evidence because the accused Mr. Rajesh had swore at his wife. He thinks that the alleged incident took place on a Saturday night in June 2011. He also confirmed that his wife is Premila. .The accused has said "Tumlog Maichod hai" (You guys are mother fuckers).
8] In cross examination the witness said that it was a Saturday, it happened around 10 to 11pm. He said that he was going out from the home. He denied that he was drunk. His Statement tendered as DEX-2. PW3 had admitted the following in his cross-examination:
(a) He was leaving his home to go somewhere between 10 to 11pm when the incident occurred.
(b) He recalled making a Police statement but he had forgotten the contents of that statement. Everything he had said to the Police were recorded in the statement. The statement was read to him and he had also read the statement and the contents of the statement were correct. He also confirmed that he signed at the bottom of the above-mentioned statement after he had finished reading it. When he was shown the statement, he had confirmed that it was the same statement which he had given to the Police and verified that the statement was his own. This statement was tendered and marked as "Defence Exhibit 2".
(c) He had approached the accused and he swore at the accused
(d) He told his wife to lodge a report against the accused when he realized the accused had reported against him
(e) He has already been sentenced for the charges brought against him by the accused. That is he has been bound over.
9] The elements of the offence of Annoying Any Person are that:
(a) The accused on the dates as per the charge (identification and date);
(b) Uttered any word, or
(c) Made any sound or gesture, or
(d) Exhibited any object
(e) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim).
10] Section 178 of the Criminal Procedure Decree 2009 provides that:
"...If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the Court shall dismiss the case and shall acquit the accused".
11] The onus rests with the Prosecution to prove Beyond Reasonable Doubt each and every element of the alleged offence and that the onus never shifts to the Defence.
12] The general principle was set out in R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer Grant CJ stated at p.103.
"it seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the Prosecutions case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".
13] The charge sheet indicates the offence occurred on 04th June 2011. PW1 – Premila Chandra Lal in her examination in chief she gave evidence that at about 8.30 to 9pm around sometimes in May or June 2011, it happened. The accused had said "Maichod! You guys can't harm me". But she can't say exact date. But DEX1 PW1's police statement says it was happened in 2pm afternoon (14 hours). This is a major contradiction, in her evidence per se. This statement was made after 5 days from the incident that is on 09th June 2011. There is previous enmity and counter case and both lay witnesses admitted because of that case they lodge this complaint.
14] Ironically DEX-2 the PW3 SUSHIL CHANDRA LAL says the incident occurred on 30th May 2011 at 11.pm. thus, it is patent the lay witnesses are contradicting each other, and their evidence is higly unacceptable.
15] The court should decide that;
(i) Has the Prosecution adduced sufficient evidence upon which the Court could convict on, should the accused offer no defence? Or
(ii) Is the Prosecution evidence so unreliable that no reasonable tribunal could safely convict on it?
16] It is seen that the date is uncertain as two witnesses gave different dates and different time. In courts and in their police statements both witnesses had stated different swear words which were allegedly uttered by the accused. In PW1 examination in chief, the complainant had said that the accused had said "Maichod! You guys can't harm me". However, in her statement to the Police, she had informed them that the accused had said "Maichod. Go and fuck your mother". PW3 who was present during the offence had said in his examination in chief that the accused had said "tum log maichod hai" in the Hindi language meaning you guys are mother fuckers. However during cross-examination, he was asked as to why he had told the Police that the accused had said "tum datt maichod hai" meaning "you go get fucked". When considering the element of Intending that such word or sound shall be heard, by the other person (the victim), they lodged the report against the accused after one week. If they really annoyed this is not the natural behavior of normal person. The following discrepancies were noticeable and are questionable:
17] I therefore that Prosecution has not proven beyond reasonable doubt that the accused had committed the offence on the 4th of June 2011. I further noted that Prosecution also had failed to prove beyond reasonable doubt that the accused had uttered words which would have reasonably annoyed the complainant. Furthermore, it is apparent that the evidence drawn out during Prosecution's case is extremely unreliable.
18] Hence I uphold that there is no case to answer. The accused is acquitted and discharged
19] 28 days to appeal
On 01st March 2013, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate-Nasinu
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJMC/2013/99.html