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State v Ahmed [2015] FJMC 117; Criminal Case 631.2011 (15 September 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION


Criminal Case No. 631 of 2011


STATE


V


SHEIK AHMED


Prosecution : PC Monish
Accused : Mr Kohli. A


Judgment : 15 September 2015


JUDGMENT


  1. The Accused, Sheik Ahmed is charged with one count of Indecently Insulting or Annoying Any Person contrary to section 213 (1) (a) and (b) of the Crimes Decree No. 44 of 2009.
  2. The particulars of the offence is that on the 1st day of November 2011, at Labasa in the Northern Division, the Accused with intent to insult the modesty of Nazia Nikhat Ali uttered the words "give me that thing (pointing to her private parts) and he will give her money" intending that such words be heard by the said Nazia Nikhat Ali.
  3. The Accused pleaded not guilty to the charge on 4 November 2014. Three hearing dates have been vacated and the hearing finally proceeded on 26 May 2015 and continued on 3 June 2015.
  4. The Prosecution called three civilian witnesses. The caution interview and the charge statement were tendered by consent of the Defence Counsel. The Defence called two witnesses including the Accused.
  5. Section 213 (1)(a) and (b) provides:

"Any person commits a summary offence if he or she, intending to insult the modesty of any person-


  1. 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
  2. Intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.
  1. The Victim in her evidence in chief and cross examination confirmed that the Accused uttered those words to her around 5.45pm on 1 November 2011, when she went to pick her nine year old brother from a neighbour's house. According to the Victim, she felt shocked, ashamed, bad, and horrified. The Victim and the Accused were neighbours. The Accused is the step brother of the Victim's mother. The Accused is the Victim's uncle.
  2. When the Victim and her younger brother reached home, the Victim's mother took the Victim's brother to the hospital. The Victim was with her aunty Habiban Bi at the Victim's house. The Victim's mother returned from hospital at around 11pm and the Victim informed her mother about the words uttered by the Accused. This was made in front of Habiban Bi. Both the Victim's mother and Habiban Bi confirmed in their respective evidence that they were informed by the Victim of the incident on the night of the incident.
  3. The Accused in his evidence in chief and in cross examination denying uttered those words to the Victim. He only asked the Victim on why is she not coming to his place. The other witness called by the defence is the Accused brother whose evidence is to show that the Accused and the mother of the Victim were not in good terms. The Defence case is that the Victim's family and the Accused were not in good terms and the Victim is telling lies.
  4. It is the Prosecution's case that the Accused uttered those words to the Accused. On the other hand, the Defence denying uttered those words. The issue now for this court is to determine the credibility of witnesses called by the Prosecution and the Defence.
  5. The Accused confirmed that he met the Victim on that day and state that he only asked the Victim on why is she not coming to his place. The Accused was fixing his water pipe and it can be inferred from his evidence that he was blaming the Victim and her family for breaking his water pipe.
  6. The Victim confirmed in her evidence that the Accused uttered those words to her. She informed her mother about the incident on that same night in front of her aunty Habiban Bi. Habiban Bi is the sister of the Accused.
  7. According to the Victim and her mother, they were in good terms with the Accused before the incident. According to the Accused they are not in good terms with the Victim's family. The Victim's mother noted that the Victim's eyes were red on that evening and the Victim was crying when she informed her about what the Accused did and said to her. According to Habiban Bi, the Victim was very quiet on that night and she was very scared and frightened when she informed her mother about the incident.
  8. In assessing the demeanour of the Prosecution witnesses and the Defence witnesses in particular the Victim and the Accused, I find the Prosecution witnesses to be more credible than the Defence witnesses. The evidence of the Victim was supported by the evidence of the Victim's mother and Habiban Bi.
  9. In assessing the evidence adduced at the trial, I find that the Prosecution has proven it case beyond reasonable doubt.
  10. In my Judgment, I find the Accused guilty as charged.

28 day to appeals


Cama M. Tuberi
RESIDENT MAGISTRATE


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