CRIMINAL APPEAL NO. HAA 0037 OF 1996 BETWEEN:
Appellant
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> AND:
RAM NARAYAN JOKHAN
s/o Jokhan
Respondent
Rachel Olutimayin for the Appellant
A. Kohli for the Respt
Date of Hearing: 2nd September 1996
Date of Judgment: 2nd September 1996
JUDGMENT <1"> This is an apby the State against an order of the Magistrate's Court at Navua on the 6th of March 1995 w995 whereby the Court discharged
the Respondent without conviction and ordered him to pay Court costs of $50.00 in default six weeks imprisonment by 15th March 1995.
The Rdent had been charged that on the 28th of February 1995 at Karachi Road Navua he had strucktruck the complainant, Surendra Prasad
with a pen knife with intent to cause grievous harm contrary to Section 224(b) of the Penal Code, Cap.17.
The Appellant appeals against the leniency of the decision to discharge the Respondent wt conviction, and the orderorder of $50.00
costs as being manifestly lenient and wrong in principle.
According to the Court recod documents tendered to me this morning without objection by the Appellant by counsel for tfor the Respondent
the facts are these: Thpondent bought a property in Karachi Road, Navua in 1991 . At that time there was a small ball building on
the property occupied by the complainant, Surendra Prasad whose brother had previously occupied it. The complainant had been paying
rent to one M.V. Bhai and when the Respondent acquired the property he requested permission to remain on it and continue to pay rent
to the Respondent. The Respondent declined this and told the complainant that he wanted possession of the property himself.
The complainant did noate so that eviction proceedings were commenced against him in this Court. On the 20th of J of January 1995
Mr. Justice Fatiaki made an order for vacant possession in favour of the Respondent and granted a stay of execution for fourteen
days. The complainant did not appear in this Court when the order was made.
On the 28th of February 1995, that is over a month since this Court's order wde, the complainant was stis still in possession of the
land and was attempting to remove the foundation of the house with a digger.
When the Respondent saw this he reported the matter to the local Police who then attended with him at the scene. An argument between
the Respondent and the complainant ensued and the Police requested them to go to the local Police Station in an attempt to straighten
the matter out. Suddenly the Respondent produced a pen knife and struck the complainant on his chest. He was taken to the local hospital
and found to have a fresh linear wound covering about 4 cm long on the left wall of his chest. The wound was stitched and antibiotic
and analgesics were prescribed and the complainant was given an anti tetanus injection.
Following this the Resnt was charged. According to documents tendered to me by Mr. Kohli consisting of a medical ical report from
the Medical Officer-in-Charge of Navua Hospital of the 23rd of November 1992 a Discharge Report from the Colonial War Memorial Hospital
of 4th April 1994 the Respondent is suffering from uncontrolled diabetes and Ischaemic heart disease. The Respondent had been admitted
to the hospital for the fourth time in two years on 19th November 1992 and discharged on the 22nd of November 1992. Dr. Simon Khin
Aung the Medical Office-in-Charge stated that the Respondent's condition had not improved even under strict medical treatment.
Counsel fe Respondent wrote to the Colonial War Memorial Hospital on the 27th of August 1996 requestquesting an up-to-date medical
report on the Respondent. This has not yet been received but rather than delay the matter any further I am prepared to accept that
the Respondent is suffering from Ischaemic heart disease and diabetes. This is confirmed in my view by a very brief report from the
Colonial War Memorial Hospital dated 4th of April 1994 which states that the Respondent was admitted to the hospital on the 29th
of March 1994 and discharged on the 4th of April suffering from what is apparently Ischaemic heart disease and an old anterior and
inferior mycardiac infarction.
According to a letter from Mr. Maan Singh, the Respondent's local Member of Parliament, he has knoe Respondent for several yeal years
and says he comes from a highly respectable family in Navua where Hindu culture, tradition and religion are respected and observed.
He says the Respondent has a distinguished record of community service to his people in Navua, religiously and socially. lly. He had
been involved in the management of Rampur Education Society from 1964 on a voluntary basis and was actively involved with Mr. Singh
in helping the victims of cyclone Kina.
To the best of Mr. Singh's knowledge the Respondent has been an honest and a law abiding citizen.
To this I would add I have been told by counsel and which is not disputed that the Respondent has been a commitommittee member of
the Rampur School since 1990, and for some years before that and now, a trustee of the Rampur Education College although he was not
registered as a trustee until comparatively recently. That in my mind is immaterial. I accept that the Respondent is a man of good
character who is 63 years old and is a first offender.
In his remarks prior to discharging the Respondent in the Navua Court the learned Magistramarked on the Respondent's nt's community
work but said that he did not think a conviction or sentence was warranted in the case. In my judgment that remark overlooks the
fact that the Respondent attacked his victim with an offensive weapon. I can understand the Respondent's feelings at the time. He
had obtained an order from this Court requiring the complainant to vacate his land but the complainant had not done so. I also consider
that the Police could have acted more decisively than they did but the complainant was also entitled to expect that because the Police
were present he would not be assaulted. It is possible that the Police were caught by surprise and recognising that the Respondent
had wounded the complainant took the complainant to the local hospital and subsequently charged the Respondent.
Like the learned Magis I ha I have much sympathy for the Respondent but a message go out from the Courts to s to the community that
there are other ways of venting one's feelings of frustration and anger against an person than resort to the the use of an offensive
weapon. The law can not be seen to condone such actions. For these reasons and despite all the good things that can be said for the
Respondent, I nevertheless believe that the learned Magistrate should have recorded a conviction against him which I now do. I have
considered substituting a suspended sentence as well for the order made by the Magistrate's Court but on reflection consider that
justice will be done by sentencing the Respondent to the rising of the Court. The order I make therefore is that there will be substituted
for the order of the Magistrate's Court at Navua on 6th of March 1995 an order that the Respondent is convicted and sentenced to
the rising of the Court.
At the previous hearing in this Couwas informed by Mr. Kohli that under the Constitution of the Rampur College any trustee of e of
the College is liable to instant removal if he is found guilty of an offence involving moral turpitude. In the context of the present
case I take that term to mean a person possessing a vileness or baseness of character rendering him unfit to be a trustee. I say
without hesitation that in this case the Respondent has committed no such offence. He has been convicted of assaulting another person.
In my view "moral turpitude" within the meaning of the school's constitution means conduct either of a sexual nature toward
students or staff at the school or serious dishonesty. Nothing of the kind is alleged or has been proved against the Respondent.
I say this in the hope of providing guidance to the committee of the school.
Order: Appeal upheld. For. For the order of the Navua Magistrate's Court of the 6th of March 1995 there is substituted the following: the
Respondent is convicted and is sentenced to the rising of the Court.
&nbssp; &nsp; JOHN E. BYR>E
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