State v Singh - Summing up [1997] FJHC 287; HAC0017S.1996S (8 October 1997)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. 0017 OF 1996

THE STATE

V

DAVENDRA SINGH

Counsel: Mr. W. Clarke for The State
Mr. A. Gates for the Accused

Hearing: 15th September 1997 to 8th October 1997

Summing up: 8th October 1997

SUMMING UP OF PAIN J.

Madam and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the Accused is Guilty or Not Guilty of the charge. I will then pronounce the verdict or judgment of the Court and your opinions will carry great weight with me in deciding that judgment.

In coming to your opinions you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source - you must ignore that completely.

The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.

The charge against the Accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the Accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case he has chosen to do so but he still carries no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence, and bearing in mind the directions I give to you, you find the charge is proved beyond reasonable doubt, your opinion must be Guilty. On the other hand, if you are left with a reasonable doubt, your opinion must be Not Guilty.

The Accused is charged with murder. The State alleges that the Accused assaulted the deceased causing fatal head injuries and thereby caused his death. The State says that the Accused had the criminal intention at that time which makes that killing a murder.

Another crime that can arise from the killing of a person is manslaughter and it is appropriate that I should explain both these crimes of murder and manslaughter to you.

Under our law a person can only be criminally responsible for the death of another if his actions come within the crimes of either manslaughter or murder as described in the Penal Code. In its simplest terms, the law is this. If a person causes the death of another person by an unlawful act, he is guilty of manslaughter. If in addition to causing the death by an unlawful act, he has what the law calls, "malice aforethought", he is guilty of murder. "Malice aforethought" is a particular criminal purpose or intention that I will shortly explain to you.

In this case the charge is murder. There are three ingredients that must be proved for this crime:

1. That the accused did an unlawful act.

2. That this unlawful act caused the death of the victim.

3. That the accused acted with malice aforethought.

I will now explain these three elements to you:

An unlawful act is something done by a person that is against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act.

Further, the unlawful act, such as an assault, must be one that reasonable people would inevitably realise must subject the victim to, at least, a risk of some physical harm. It need not be serious harm and it does not matter whether the offender realised this or not.

In this case the State alleges that the Accused struck the deceased on the head and face causing facial injuries and brain injury. If that is what happened then that would be an assault which is an unlawful act. The defence says that the Accused did not strike the deceased and this prosecution allegation is disputed.

To find this element proved, you must be satisfied to the required standard that the Accused did do this unlawful act to Hari Prasad and it was something that inevitably subjected Hari Prasad to the risk of some physical harm.

The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes come specific injury to the victim and that particular injury causes the victim’s death. For instance, the offender stabs the victim with a knife. The knife pierces a vital organ and the victim dies from that injury. That is an example of causing death by an unlawful act. Usually the unlawful act causes an injury which is the sole cause of death. But if it is sufficient if it is an operating or substantial cause of death.

Death does not have to occur immediately after the unlawful act. The offender remains liable for that death if it occurs at any time within one year and a day of the unlawful act provided the death is still caused by that unlawful act.

So in this case the State must prove that by an unlawful act in striking the deceased on the head the Accused caused brain injury to the deceased and that injury caused his death.

The third element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is an old legal term which describes a particular intention or state of mind.

It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused, accompanied by indifference whether it is caused or not, or by a wish that it may not be caused.

In the present case the State alleges that the Accused intended to kill the deceased or at least do grievous harm to him.

Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.

Therefore the State must prove that the Accused struck the deceased causing the brain injury that caused death and at that time he either:

1. intended to kill Hari Prasad or

2. he intended to cause serious or permanent injury to Hari Prasad or

3. he knew that serious or permanent injury would be likely to be caused to Hari Prasad and he nevertheless went ahead and did it being indifferent, that is having no concern one way or the other, whether serious or permanent injury was caused or not or that he did it wishing or hoping that such injury would not be caused.

One of these states of mind must be proved by the prosecution to establish malice aforethought.

An Accused’s state of mind is as much a question of fact for you to determine as any other question of fact and I will have something further to say on this shortly.

That completes my explanation to you on the crime of murder.

To summarise there are three elements to be proved for the crime of murder. First, an unlawful act. Second, that the unlawful act caused the death of the victim. The third element for murder is proof of malice aforethought which is the specific intention or knowledge that I have just explained to you.

If only the first two elements are proved but not the third element then that amounts to the crime of manslaughter.

This means proof that the Accused did an unlawful act that caused the death of the victim but it is not proved that the Accused had the necessary intention to kill or cause grievous harm. He would then be guilty of the crime of manslaughter, even though the fatal consequences or causing grievous harm was not intended or contemplated by him.

Of course, the defence in this case is that neither murder nor manslaughter has been proved.

CIRCUMSTANTIAL EVIDENCE

In this case there is no direct evidence from somebody present in the flat who says that they actually saw the Accused injuring Hari Prasad in the manner alleged by the prosecution. However, it is not unusual for crimes to be committed in the absence of eye witnesses.

The evidence relied upon by the prosecution in this case is circumstantial evidence. You are asked to piece the story together from witnesses who did not actually see a crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

A common example of circumstantial evidence is fingerprint evidence. Suppose a person’s fingerprints are found on an object at the scene of a crime, such as a murder weapon. It could be inferred that the person has handled that weapon and been present at that place. That inference could be drawn even though there is no direct evidence that the person was seen there.

On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the Accused is guilty of the crime.

That is what the State is asking you to do in this case. The prosecutor has directed your attention to a number of facts and circumstances which he submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charge. The defence disputes some of those matters and says that the Accused did not assault Hari Prasad and no inference of guilt can be drawn from the circumstantial evidence.

Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime. To find him guilty you must be satisfied that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

One of the inferences that the State asks you to draw in this case is the state of mind of the Accused. If he did attack Hari Prasad, what was his intention when he did that. The State says that he intended, at the very least, to cause grievous harm to him.

A person’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

They include, for instance, what the Accused himself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show his purpose or intention. Other matters that may be relevant are:

- What the Accused said and did before the alleged offence.

- What the Accused said at the time of the alleged offence.

- What the Accused said and did after the alleged offence (including his statement to the police), and

- What the Accused said in evidence.

You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s beliefs, knowledge, purposes and intentions.

To come to the conclusion that the Accused had a specific intention or knowledge at the time of the alleged offence, you would need to be satisfied that this is the logical inference to be drawn from the proved facts and is not mere speculation or guesswork. As it is an element of the crime that must be proved by the State you must be able to infer that intention or knowledge beyond reasonable doubt.

On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.

However, there are some comments that I must make on a few items of evidence.

Evidence has been given about a post mortem examination of the deceased’s body. That examination was conducted by Dr Alera at CWM Hospital and he prepared a report of his findings. Normally he would have given evidence himself about the examination. However, he has left Fiji and as he is no longer available, details of what he included in his post mortem report have been given in evidence. This means, of course, that we have not had the advantage of hearing Dr Alera’s evidence on oath and the defence has not had the opportunity to cross-examine him about his findings.

However, the evidence is properly before you and you should have regard to all the circumstances in deciding the weight to be given to it. For instance, the defence has pointed out that the report is not on the new form which would have given more extensive details. However, it was prepared by a pathologist who conducted a routine post mortem examination. The report was made at or immediately after the examination. Some of the findings are confirmed by other medical witnesses who saw and treated the deceased in hospital. It is entirely a matter for you but you may feel that there is no reason to doubt the accuracy of the report.

The next matter relates to the evidence of the interview of the Accused by the Police. That was conducted by Detective Constable Uday Chand. He prepared an original written record of the interview in the Hindustani language and also an English translation. Unfortunately Detective Uday Chand has since died and these statements have therefore been produced by Constable Maha Ram as the witnessing officer who was present and signed the bottom of each page.

The Accused denies that Const. Maha Ram was present during the interview and counsel made specific submissions about this. This conflict of evidence between the Accused and Const. Maha Ram is one of the many issues of credibility that you will have to consider in this case.

However, that statement is properly before you as an item of evidence. The Accused does not dispute that it is the record prepared by Det.Uday Chand at the time of the interview. What the Accused does say is that in some places the statement does not correctly record the answers given by him - for instance, his replies to question about the false teeth and the red mark on his T-shirt.

You can consider all the circumstances and decide what weight you put upon the recorded statement of interview. For instance, you will consider the credibility of the Accused and the credibility of Const. Maha Ram. Also the statement records that it was read over to the Accused and he acknowledged that when he gave evidence. However, you may think that the evidence of Const. Maha Ram is of little assistance in determining whether the Accused’s answers were correctly recorded. At best, he did not observe what Det. Uday Chand was writing. He was sitting at another table and was preparing his dockets as well as observing the interview. Those are some matters that you may think are relevant. As I said, it is for you to consider all the evidence and circumstances relating to this issue and decide what weight you place on the record of interview that has been produced as an exhibit.

Finally, there is the evidence given by the Accused himself.

I must remind you that when an accused person gives evidence he assumes no onus of proof. That remains on the State throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

You will generally find that an accused gives an innocent explanation and one of three situations then arises:

1. You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

2. Alternatively without necessarily believing him you may say ‘well that might be true’. If that is so, it means there is a reasonable doubt in your minds and so again your opinion must be not guilty.

3. The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation would then be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If their evidence proves that he committed the offence then the proper opinion would be guilty.

So it is for you to consider the Accused’s evidence and decide what reliance you can place on it. You should weigh it up and evaluate it against the evidence of the other witnesses and facts that have been proved.

I will now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel, that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

The prosecution case is put very simply.

The Accused and the deceased were together in the deceased’s flat. Nobody was in the flat. Unusual noises were heard coming from the flat. People looked into the flat and saw the Accused but not the deceased. When people finally entered the flat, the deceased was found lying on the floor with serious injuries to his face and head. The Accused was the only person in the flat with the deceased. He must have inflicted those injuries on the deceased. The nature of the injuries was such that the Accused must have intended to kill or at least cause grievous harm to the deceased.

The head injuries caused damage to the brain, particularly subdural bleeding. This caused the death of the deceased. The Accused is therefore guilty of murdering the deceased.

In support of this prosecution case I have just out lined the State relies on evidence of people who were in the vicinity of the flat on that day and evening.

The first was Vinod Jagmohan, who was the nephew of the deceased and lived in the downstairs flat. He said that he was invited by Hari to go and have a drink and he went Hari’s flat about 3-3.30 in the afternoon. He said that the Accused and the deceased were drinking. They were very jovial. They were joking, laughing and making fun. It was Christmas and they were enjoying themselves.

He says that he left about 3.30-4.00 and returned to his own flat. At about 5.00 pm the deceased called him to go up and have another drink but his wife told the deceased that Vinod was asleep. Then at about 7-7.30 pm he heard a thumping noise on the floor and he heard the noise of a man vomiting and then saying "God save me". He went upstairs, saw the Accused standing in the lounge but the Accused was not doing anything. He said that the thumping and moaning sound from the deceased continued. The deceased would say "God save me". He said it appeared he was drunk, vomiting and after that saying "God help me". He said that he walked on to the drive way and looked into the flat and saw the Accused standing there and he said that the Accused’s hands were going up and down as he demonstrated to you.

He said that he told neighbours, who were also attracted by the noise, don’t worry they had a lot to drink - one is vomiting and the other is patting him on the back.

In cross-examination he said that this movement of the Accused’s hands was not odd. He said that he gets his own children to tap him on the back. Later he said that he saw the Accused standing at the telephone and speaking into it. He said the Accused was talking very loudly. He was calling for the police and the ambulance. He was saying that he had just walked into the flat. The door was open and somebody had assaulted the deceased.

Vinod said that he noticed that the front door was now open. He said that he next saw the Accused on the road and then after a few minutes the Accused called him from the top of the stairs. He said "why don’t you come up and see what has happened to Hari?" Vinod said that he went inside the flat and other neighbours also went in.

The deceased was lying on the floor. He saw that his face was swollen and puffed up. He said that you could see that he was hurt. There was blood on his face, on the floor and on a cloth. He then called for an ambulance and the police.

He also said that during that day nobody else but the Accused was in the deceased’s flat. He said that he didn’t hear anybody else up there.

The next witness of importance relied upon by the prosecution is Sanjay Shankar. You will remember that he is the FIT student. He lived next door to Vinod’s house and he was in someway related to the deceased and at the time of this incident he was seventeen years of age.

He said that at about 7-7.30 that night he saw people outside so he went over to where they were. He said they were looking at Hari’s flat and he saw someone in the sitting room. He said the light was on, the man was bent over with his hands going up and down.

He said that he went up to the door and knocked and then ran down again and nothing happened. He then said that he went to the steps and the man was standing in the sitting room. He was bending over saying something. Sanjay said that he remained on the steps for only a few seconds and he then went down and around the back and walked and crawled his way to a window of Hari’s lounge.

He said that he looked through and saw the man hitting something. He said that the man was slapping and chasing spirits away. He said the man was bending over. He had a clear view. He could see him but not what he was hitting. He said his hand was slightly open and each time it went down, he heard a slapping sound. He said that Hari was moaning. He stayed at the window for about a minute and then left. He then told us how he got involved with the police who had come looking for somebody and he helped them to do that.

He said that later Vinod called him over. He said at this stage the front door of Hari’s flat was open. Vinod said to go and check what was happening. He said that he went in through the front door and saw Hari lying on the floor. He said there was blood on the mat beside Hari’s face. The Indian man, he said, walked through the corridor, probably from the kitchen, as he was carrying a cloth. He said this man sat on the sofa near Hari’s head and started wiping Hari’s face. He said that the Indian man said at the time "who did this to you? Why didn’t you close the door after Vinod had left?". Sanjay said it was the same man that he saw before bending over and hitting something. Hari’s face was swollen and he was bleeding through his mouth and nose. He said that other people came into the room. He also said that if Hari had been lying in the position where he found him, when he saw the other man through window, that other man would have been standing beside Hari.

A neighbour from the other side Mahendra Lal also gave evidence. You will remember he is the man who is now a bank officer at Nadi.

He said that at about 7 o’clock that night he was preparing a roster in his carport. He heard a noise from Hari’s house. He said Hari was groaning and saying "Oh Lord try and save me". He said that he saw Vinod at the back of Vinod’s house and spoke to him. He probably heard the moaning noise twice before he spoke to Vinod.

He said that Vinod later called him over and four or five neighbours with there. Vinod said that we should go up and see what is happening to Hari. Mahendra Lal said that they all went inside. Vinod was definitely there. He couldn’t remember which others but he thought that Sanjay was there as well. He said that Hari was lying between the settee and the main entrance. His face was puffed up and froth and a mixture of blood was coming out of his mouth. He also said that he saw this Indian man standing about five feet from Hari. In cross-examination he said, when it was put to him, that it is totally incorrect that he didn’t go inside the house.

Vinod’s wife Mala Jagmohan also gave evidence. She said at about 2 o’clock she heard a car drive up and saw an Indian man go to Hari’s flat. She said that about 3 or 4 o’clock Vinod went up to Hari’s flat. After about half an hour she went to the door of Hari’s flat and her husband then returned with her to their place. She said at about 5 or 6 o’clock Hari came looking for her husband to go up again but she said that her husband was asleep. She said at about 7 p.m. she heard raised voices. She thought it was from the Church across the road and in cross- examination she said that she thought the raised voices was preaching. She said that she later heard noises. She said they were thumps and that sort of thing, Hari moaning and saying "God help me". She said the thumps were coming from the sitting room. It did not sound like someone jumping off a chair. It was more a muffled thud. She said she couldn’t say what was causing it. She asked Vinod to have a look and Vinod went outside. She then said later, it could have been 9 or 9.30, she heard someone asking her husband "What are you doing there? Come up and have a look at what happened". She said that that was spoken in Hindi but she didn’t see who said it.

Finally, there is the evidence of Const. Arvind Chandra who was at Samabula Police Station. He said that at 9.30 pm he was directed to attend this incident. On arrival he was referred to Vinod and he then went into the house alone. He said that the deceased was lying on the floor with his face up. He said the deceased was moaning, his face was swollen and he had blood on his mouth. He said the deceased couldn’t speak. The Accused was standing in the room and he had blood stains on the front of his shirt. He said the Accused looked very shocked. He said no one else was present in the house at that time. He said the Accused told him that he didn’t know what had happened. He also gave evidence that there was a rear vision mirror under the settee and a line of blood from the mirror to the mat. He said they were not drops of blood but a wiped stain of blood. He also said there was an iron bar under the settee and that Vinod and others were out on the balcony when he went inside. He also said that there was no vomit in the lounge room.

Well that is the evidence of those persons who were in the vicinity of Hari’s flat. The State also relies on medical evidence.

But before commencing that I think I will just take a short break because there is a limit to how long you can concentrate on something like a summing up. So I will take a short break to give us all just a little rest.

I turn now to the medical evidence.

First, Dr. Veitogavi gave evidence. He was the Principal Medical Officer at the Accidents and Emergency Dept of CWM Hospital at this time.

He said that Hari Prasad was brought to Dept at 10.30 p.m. Dr. Veitogavi examined him and noted that he was semi conscious, smelt of liquor, was groaning in pain, had extensive injuries on his face with contusions, had a Haematoma on the lower parts of his eyes, had low blood pressure and had pain in the chest. He was holding his hand to his chest. He also responded sluggishly to light which meant his brain was not functioning properly. Dr. Veitogavi diagnosed head injuries with blood from nose and bruising on face and the deceased was admitted to hospital.

DR. KUMAR also gave evidence. He qualified as a doctor in 1993. In December 1994 he was just completing his 12 months as a medical intern at CWM Hospital.

He referred to hospital records and said that Hari Prasad was admitted to neurological ward at 1.30 am with a diagnosis of head injury. He was examined by Dr. Blange who found facial contusions, left periorbital haematoma which means swelling around left eyeball, nasal bleeding, cuts on his lips and he was
intoxicated and semi comatose.

Dr Kumar said that at about 9.20-9.30 p.m. on the 26th December he was called to the patient. He examined Hari Prasad and found that he was grunting, his jaw was stiff, his eyes rolled upwards and he was not responsive. He made a diagnosis of a fit. He considered it to be post traumatic epilepsy. He considered it was most likely due to the head injury. It is a common symptom that is found following head injury. He treated the patient with valium and also ordered dilantin.

At 11.20 pm he was called again to the patient and he found that the patient was dead and certified accordingly.

Finally, DR Krishna gave medical evidence. He is a qualified pathologist. He referred to the post mortem report of Dr Alera and the clinical findings on the post mortem examination. hese were:

1. Contusions involving both eyes

2. Haematoma on the middle of the forehead

3. A fracture of the nasal bone

4. A fracture of the maxilla bone - cheek bone under right eye.

5. Bruising of the upper lip

6. Haematoma in the right clavicular region which is the right shoulder blade area.

7. Fractures of 5 ribs at the front. The 3rd, 4th and 5th ribs on the right hand side and 3rd and 4th ribs on the left side.

8. Severe subdural bleeding on the left fronto-parietal area of the brain

9. Subarachnoid haematoma, which is a collection of blood involving the cerebellum part of the brain.

Dr. Krishna said a blunt force or sharp penetrating force would be needed to cause the fractures to the nose, cheek bone and ribs and the haematoma in the area of the right shoulder. He said that particularly strong force would have been needed to break the ribs and he explained how they bend.

In his opinion death was caused by the massive subdural haemorrhage or bleeding in the brain. He said that is commonly caused by an acceleration/deceleration injury which is a sudden movement of the brain relative to the bones of the head. It could be caused by a fall or blunt force applied to the head. The presence of the injuries to the face, contusions and fractures point more strongly, he said, to a blunt force applied to the face.

I have now reminded you of the evidence of a number of witnesses. Their testimony was much more extensive than the summary I have given. Also they were cross examined at length. That included, for instance, questions to the eye witnesses about the light in the room and the view they obtained through the curtains. The medical witnesses were asked, for instance, questions about the nature of the injuries and the likelihood of the deceased having had an epileptic fit. As I said earlier all that evidence should be considered and evaluated by you.

Now on the basis of this medical evidence and the evidence of the other witnesses who were at the property that night - the State says that it is clearly proved that the injuries to Hari Prasad were caused by the Accused. The head injuries caused the bleeding in the brain that then caused the death of Hari Prasad. The extent and the severity of the injuries clearly show that the Accused must have been intending to kill or at least cause grievous harm to Hari Prasad. He is therefore guilty of murdering Hari Prasad.

The State also submitted that the denial by the Accused has no basis. His evidence that he was sleeping when Hari Prasad sustained his injuries should be rejected as being totally untrue. He was seen in the living room by Vinod and Sanjay during this period when he says he was asleep in the bedroom. His unreliability is also shown by the fact that his evidence is contrary to so many other witnesses particularly Vinod and Sanjay and even the policemen Constable Chandra and Const. Maha Ram. Counsel submitted that it is quite unbelievable that the Accused could have been asleep when all this noise was going on and he was actually seen to be in the lounge. It is also unbelievable that he would not have observed the injuries to Hari’s face.

The State also says that the suggestion that the deceased could have suffered his injuries when he had an epileptic fit and fell to the floor is not sustainable. How would that account for the thumping noises heard throughout the evening? The injuries to different parts of the body namely the forehead, nose, eyes, cheek, shoulder and ribs indicate more than one blow. Dr Krishna said that such a fall would be unlikely to cause all those injuries though it might cause the bump on the forehead.

Likewise, the State submits there is no basis for the suggestion that Vinod returned to the deceased’s flat about 7.30, argued with him and the deceased then had an epileptic fit and fell injuring himself. This is pure speculation with no evidence even from the Accused to support it. This was strongly denied by Vinod when it was put to him and he said that the Accused was the only person there. Mrs Jagmohan said that Vinod did not go back to have another drink with Hari. She also said that when she heard raised voices at about 7 p.m. it was "definitely not her husband as he was downstairs with us at the time".

So the State says that the defence raised should be rejected. The prosecution evidence proves that the Accused committed the offence.

The defence submits that no such conclusion of guilt can be drawn from the evidence. It is not proved that the Accused inflicted the injuries upon the deceased and caused his death.

The Defence submits that the Accused has been consistent throughout and his evidence cannot be ignored. He says that he went to sleep in the bedroom at about 7 p.m. When he woke up at 9 p.m. he found Hari lying on the floor. He thought Hari must have rolled off the settee. He went downstairs and asked Vinod to come and help to lift Hari. He said that he had no idea that Hari had been injured. He said he did not do anything to him. Const. Chandra said that the Accused told him at the scene that he did not know what had happened. In the statement he made the next day the Accused said that he was sleeping and did not assault Hari. Counsel for the Accused points out that the Accused has been consistent throughout in denying any knowledge of the injuries caused to Hari Prasad.

Defence Counsel also submits to you that there would be no reason, no motive for the Accused to have attacked the deceased in this way. They were on good terms. When seen by Vinod earlier in the day they were enjoying themselves together. They were joking, laughing and making fun.

Counsel is also critical of the evidence of Vinod and Sanjay and submits to you that it is too unreliable to be acted upon. They had only limited vision through lace curtains into one corner of the room. Vinod didn’t seem very concerned about what was happening in Hari Prasad’s flat. He didn’t do anything about the noise and Hari’s groaning over a long period. He sent the night watchman up to have a look. Counsel also suggested that Sanjay was young, immature and perhaps under the influence of Vinod.

Counsel is also critical of the Police investigation. You will recall that he suggested that a proper examination should have been made of the room, fingerprints could have been taken from the glasses and proper checking and testing could have been made of alleged blood stains.

Counsel also dealt with the actions that the Accused was alleged to have been making in the room. He demonstrated what was described - the Accused’s hands pumping up and down and the Accused bending over slapping something. He referred you to Dr Krishna’s comments on these actions and submitted that they could not have caused the injuries to Hari Prasad.

It was also pointed out that there were not a lot of injuries to the deceased and the injuries later observed did not cover a wide area of the body. The main injuries were to the forehead, eyes, cheek and chest. It was submitted to you that this was quite inconsistent with what was supposed to be a prolonged beating over one or two hours.

Counsel also submitted that somebody else could have been in the lounge while the Accused was asleep. The Accused said in evidence that Hari told him that he was expecting Vinod to come back. The presence of 3 glasses on the table in the lounge could suggest that two other people were in the room. Perhaps Vinod returned with the night watchman.

Counsel also submitted that on the evidence it is quite likely that Hari Prasad had an epileptic fit. He had a history of such fits and was supposed to be on medication. Vinod agreed in cross examination that it could be that, from what he heard, Hari was having a fit. He certainly commented to a neighbour "he’s having his fits now". Counsel also pointed out items of evidence, such as the froth in the mouth that would be consistent with an epileptic fit.

Counsel submitted to you that Hari could well have had an epileptic fit, fallen to the floor and sustained the various injuries. Dr Krishna agreed that the injury to Hari’s forehead could have been caused by such a fall and the facial and chest injuries might be caused by a heavy fall from a height on to some solid objects striking the body in those positions.

Finally, counsel put to you a scenario that perhaps Vinod returned to the room as planned, to have some further drinks with Hari. Something happened. Hari had a fit and fell down injuring himself. He looked as if he was dead. Vinod panicked and left. That is why he told everyone not to worry and didn’t go back into the flat himself. He did not want to go back to the body of his uncle whom he thought was dead.

So the defence submits that the charge against the Accused has not been proved on the evidence that you have heard..

Well those are the prosecution and defence cases that you will have to evaluate when you consider whether the charge against the Accused has been proved.

I suggest to you that a good many matters are not in dispute and your deliberation will come down to a few crucial issues. However, these thoughts I now express are not binding on you and you must form your own independent conclusions on these matters.

Some matters I suggest are beyond doubt:

- The Accused was in the flat with Hari Prasad throughout the whole evening. He must have been there when Hari sustained his injuries.

- Those injuries included head injuries resulting in subdural bleeding in the brain which caused Hari’s death. There is no dispute about that. Mr Gates said in his final address that "there seems no doubt that the deceased did die from a subdural haemorrhage".

The real issue in this case is therefore how the deceased sustained these head injuries that caused his death. Before the Accused could be found guilty it must be proved by the State that he unlawfully assaulted the deceased and inflicted these head injuries.

There is a conflict of evidence. The Accused said that he was asleep and does not know how the injuries were caused. The prosecution witnesses say that he was seen in the lounge. If this is so, he was not asleep and he was the only other person in the house. If Hari was assaulted he was the only person who could have done it.

You may agree with counsel for the Accused that the actions of the Accused, as observed by eye witnesses would be unlikely to cause the severe injuries suffered by the deceased. Considerable force was needed to cause the main injuries. If they were caused by the Accused he must have used greater force than any witness observed and even some blunt object to strike the deceased. If so, when was this done? When did the deceased suffer his injuries.

In this regard, an interesting feature of the evidence is that according to all the witnesses the unusual activities in Hari’s flat went on for quite a lengthy period of time. That is the thumping, Hari groaning and calling for help.

Further, throughout that period, although people were watching, no witness gave evidence of seeing Hari. They say that they only saw the Accused. If this is true, one possible explanation is that from the beginning Hari was lying on the floor injured and moaning in pain.

Further the injuries subsequently found were within a smallest area of the body, but in separate locations. The forehead, the area around the eyes, nose and cheek bone, the lips, the shoulder and the ribs. This may suggest more than one blow. However, nobody has given an opinion and possibly nobody can say at what time throughout this period the various injuries were inflicted. Could one or more of them have been inflicted at the beginning and immediately disabled Hari or were they inflicted over a period of time?

A further factor that you might think relevant is that there is no suggestion of a fight between the Accused and the deceased. There is no suggestion of any injury to the Accused. Hari was heard to be moaning from the very beginning of the unusual noises. This continued intermittently and he was still moaning when he was ultimately found on the floor and when he was admitted to the hospital.

These matters I have mentioned are circumstances that you may find of some assistance in determining the facts that have been proved in this case. Of course, the crucial matter for you to determine is how the injuries were inflicted on the deceased.

I repeat that to find the Accused responsible for Hari’s death you must be satisfied that he unlawfully assaulted Hari and caused the injuries. To do that you would need to reject the Accused’s evidence that he was sleeping as untrue and you must be able to exclude the possibility of the deceased sustaining his injuries by falling to the floor because of an epileptic fit. If you accept what the Accused has said or consider that the injuries were caused by a fall then the accused has not committed an offence. But you need not be convinced to that extent. If it is possible that the Accused was asleep or the injuries to the deceased may have been caused by a fall - in other words if there is a reasonable doubt that the Accused inflicted the injuries, then your opinion must be not guilty.

On the other hand, if you reject the Accused’s evidence and the possibility of the injuries having been caused by a fall, and if the combined effect of all the circumstances and facts proved in this case lead to only one rational conclusion. If they satisfy you to proof beyond reasonable doubt that the Accused unlawfully assaulted the deceased and inflicted the injury that caused death, then the Accused would be responsible for that death.

He would be guilty of murder if from the nature, extent and severity of the injuries you can infer beyond reasonable doubt that he had malice aforethought - the intention to kill or cause grievous harm that I have earlier explained to you.

If that intention cannot be inferred beyond reasonable doubt then he would be guilty of manslaughter only.

Madame and Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.

We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.

When you have reached your separate decisions we will all come back into Court ad you will each be asked to state your opinion as to whether the Accused is guilty or not guilty of the charge. The possible opinions you could have in this case as I have already explained to you are that the Accused is guilty of murder, or the Accused is guilty of manslaughter only, or the Accused is not guilty which means not guilty of either murder or manslaughter.

Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions.

Thank you.

Justice D.B. Pain