State v Shayam [2010] FJHC 163; HAC043.2008 (14 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 043 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

JOSEPH MARTIN SHAYAM
ACCUSED PERSON

Counsel: State - Mr. L Sovau and Ms Bull
Accused Person - Mr. A Sen

Date of Summing Up: 14 May 2010

SUMMING UP

Madam Assessor and gentlemen Assessors.

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. 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 properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

The Counsels for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused’s guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.

Your duty is to find the facts based on the evidence apply the Law to those facts.

The accused is charged on two counts. The evidence on each count must be considered separately. On count one accused is charged with the offence of murder and it is alleged that he murdered Randhir Kapoor on the 25th December 2001 and on count two he is charged with the offence of attempted murder of Kiran Kapoor.

The offence of murder has three elements which prosecution must satisfy you beyond reasonable doubt.

They are:

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 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 person without legal justification then that is a criminal assault.

In this case state alleges that the accused caused injuries with a knife which caused death of the deceased Randhir Kapoor.

Defence says that the accused acted in self Defence. Further that the accused was provoked and he acted on provocation.

Accused admitted that he while having the knife in one hand used both hands on the deceased and on Kiran Kapoor in self defence and on provocation. He demonstrated to court in your presence how he acted. Evidence on each count must be considered separately.

So if you are satisfied that the accused was or may have been acting in lawful self-defence of himself or his family you must find him not guilty. Because prosecution must prove the guilt of the accused beyond reasonable doubt. You must consider the matter of self-defence in the light of the situation on all evidence placed before you. You must first ask whether the accused honestly believed that it was necessary to use force to defend himself.

If you are sure that the accused did not believe that it was necessary to use force to defend himself, he cannot have been acting in self defence, and you need not consider this any further. But if you think that the accused did honestly believe or may have honestly believed that it was necessary to use force to defend himself, you must then decide whether the type of amount of force the accused used was reasonable.

Obviously a person who is under attack may react on the spur of the moment and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand if he goes over the top, uses force out of all proportion to the anticipated attack on him or more force then is really necessary to defend himself the force used would not be reasonable. So you must take into account both the nature of the attack on the accused and or his family and what he then did.

If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting in Lawful Self Defence. But if you think that the force the accused used was or may have been reasonable you must find him not guilty.

The second element of the offence of murder 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.

As a matter of Law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts on medical field. Three doctors including the pathologist gave evidence and their expertise was not challenged and therefore their opinions are admissible.

The then Senior Pathology Registrar of C.W.M. hospital Dr. Loata who conducted the post mortem examination on the body of the deceased gave evidence as to the cause of death.

The 3rd 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 a 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.

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 with the knife causing his death and at that time he intended to cause serious or permanent injury to the deceased or he knew that serious or permanent injury would be likely to be caused to the deceased.

You must not find the Accused guilty for murder unless you are sure that the Accused, when he did the act, intended to kill or cause grievous harm to the deceased. In deciding whether he intended to kill or cause grievous harm you must take into account the evidence which was given in court. If you think he did not intend or may not have intended to kill or cause grievous harm, then you must find him not guilty of murder but guilty of manslaughter. This means 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.

If you are sure that the Accused unlawfully killed the victim, intending to kill the victim, or to cause the victim really serious injury, the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the Accused to establish that it was.

Provocation has a special legal meaning, and you must consider it in the following way.

Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the deceased rather than just by his own bad temper. The defence states that the accused was provoked by the words and the abusive language that the deceased used and the acts he did to his family and to him.

If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise.

But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affected him more than it might have affected other people?

Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex (male aged around 30 at the time of incident), would have been provoked to lose his self-control and do as this Accused did. If you are sure that a person would not have done so, the prosecution will have disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation.

You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused’s conduct, knowledge and intentions.

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

On count two accused is charged with the offence of attempted murder of Kiran Kapoor. The offence of attempted murder has number of elements to it. They are;

1. The accused had intent to unlawfully cause the death of in this case Kiran Kapoor.

Unlawfully means without just excuse. It must be a deliberate act.

2. The accused did an act or acts.

3. The act must be such as likely to endanger human life.

A persons intentions are locked up in his mind. The intent cannot be physically observed. However this intent can be proved by what he said or told others or it can be inferred from his conduct prior to, during and subsequent to the commission of the offence.

It is for the prosecution to prove that the accused intended to unlawfully cause the death of Kiran Kapoor. It is not for the accused to prove otherwise that is to negative intent. It is for the prosecution to prove intent to unlawfully cause death beyond reasonable doubt.

The other relevant factors when considering the intent to cause death may be the weapon used, the nature of the injuries inflicted and their number, where on the body the victim was struck.

The doctor’s evidence is also relevant to the proof of the third element. That is acts of accused must be likely to endanger human life. Witness Dr. Bale Kurabui who treated the victim Kiran Kapoor said in his evidence that it was fortunate that the patient was brought to hospital on time so they could treat him.
Assuming that you are not satisfied beyond reasonable doubt about any one or more elements of attempted murder the only other offence to consider is the offence of act intent to cause grievous harm. The intent for this offence is intent to maim disfigure, disable, or do some grievous harm. It is less than intend to kill. If with intend to do some grievous harm, a person unlawfully wounds another person, he is guilty of an offence of act intent to cause grievous harm.

In this case the accused admits that he struck Kiran Kapoor with the knife. But he states that he did it in self defence. The legal principals I explained to you on self defence applies to the offence of attempted murder as well. If you find that the accused has acted in lawful self defence as I explained to you, you must find him not guilty.

As a matter of Law may I direct you on circumstantial evidence.

In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the 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 fingerprints evidence. Suppose a person’s finger prints are found on an object at the scene of crime. It could be inferred that he had been there. If this finger prints are found on a weapon it can be inferred that he used it. One witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt but taken together may lead to the conclusion that the accused committed the crime.

Therefore you must consider all direct evidence as well as circumstantial evidence.

It must not be mere speculation 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 so as to feel sure 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.

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

As I explained 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, after, and at the time of 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 believes, knowledge, purposes and intentions.

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

The Evidence

The prosecution called 18 witnesses.

The 1st witness called by the prosecution was Dr. Bale Kurabui.

He is a MBBS graduate from Fiji School of Medicine and has been practicing medicine for 16 years. Currently working for Fiji Police Force as a Medical Officer.

On 25/12/2001 he had been the Registrar on call at Labasa Hospital and the patient Kiran Kapoor was referred to him.

Patient had multiple soft tissue injuries on head, left shoulder and left forearm. Patient was treated until he was discharged and the medical report prepared by him was marked and produced.

Reading his report he said the diagnosis was multiple soft tissue injury of being assaulted by a sharp object. Further he said it was fortunate that patient was brought to hospital on time so they could treat him.

The next witness was Dr Pradeep Singh. He is a MBBS graduate from Ranchi University, Bihar, India and practiced medicine for last 22 years. On 25/12/2001 when he was working in the Accident and Emergency Department of Labasa hospital, Police brought the dead body of an Indian man and there had been a deep gash of the interior chest wall and the body was sent to the mortuary for post mortem to be organized by Police.

The 3rd witness was Dr. Loata Musudole. She had been the Senior Pathology Registrar of CWM hospital from 2000 – 2008 and she had been practicing medicine for 11 years. She had been conducting more than 100 post mortems per year before the forensic pathologist was posted.

On 28/12/2001 she conducted the post mortem on the body of Randhir Kapoor. Post mortem report was filed as exhibit 2. She said all organs of deceased were healthy except they were very pale due to loss of blood.

External examination she has observed a deep sharp incisional knife wound measuring 370mm in length and 30mm deep, extending from the left jaw, across the neck and down to the chest to the right nipple. Further she said the left internal jugular vein is severed which is a large blood vessel in the neck.

Cause of death according to the report she said was a massive and extensive incisional knife wound across face, neck and chest severing the left internal jugular vein and in simple language she said deceased died of bleeding. Photographs of the body of the deceased taken at the post mortem examination was produced.

In cross-examination she said the patient would not have survived even if he was brought to hospital on time. In that she said it is a large blood vessel which was severed and if the deceased was in a country where vascular surgery specialists were available a small chance would have been there. But not in Labasa hospital.

Next the prosecution called witness No. 4 Mosese Rokobera.

He had been in Police service for 21 years and he had specialized in crime scene examinations and identification of persons commonly known as finger prints. When he arrived at the crime scene of this case on 26/12/2001 he was briefed by Divisional Crime Officer.
He has photographed the places believed to be where body of the deceased was found, where the deceased was struck with a knife and believed to be place where deceased’s brother was found lying. These places he had observed red stains believed to be blood. Further he has taken photographs of the houses in the vicinity including Vijay Singh’s house, Rajeshwa Nand’s house, deceased’s house and suspect’s house.

Further he had photographed the place believed to be where knife used for stabbing was found and also the body of the deceased at the post mortem examination. All those photographs 1 – 23 were marked and produced. He had prepared a sketch of the crime scene which also was marked and produced.

In cross examination he said that he did not have a personal knowledge as to what happened until he was briefed. Blood samples were taken by a forensic pathologist named Lorima Seru and field test was done by the said pathologist while he was at the scene.

Further he said that on seeing the photographs he cannot say the distance of the deceased’s house and the accused’s house. He has gone to the accused’s house but not inside. He said louvers were broken and grills were dented towards the house. Further he said there were signs of force movement of the back door of accused’s house.
Next witness was Police Officer Keshwan Naidu. He has witnessed the charge statement. Charge statement and the English translation was marked and produced.

The next witness for the prosecution was Inspector Krishna Nair. He was the witnessing officer of the caution interview of the accused. Caution interview was conducted by Inspector Munsami. He said that the accused’s rights were given to him and he signed as a witness and identified his signature.

In cross-examination he said he has served in Labasa Police Station and that he knows the area. Further he said in the area in which this alleged crime was committed neighbouring houses are situated very close to each other and compounds of neighbours are not fenced separating each other. Effectively the houses are very close to each other.

With regard to the damage caused to the house of accused he said some louver blades were broken, TV and the radio was thrown down on the floor and also some other items. Back door facing the house of Kapoor’s was found open. He had been in the scene until the Divisional Crime Officer came.

When the accused was brought to Police the accused had been very co-operative.

The next witness was Inspector Munsami who was the investigation officer. He has visited the scene and also recorded statements of witnesses. He also conveyed the body of deceased to hospital, collected exhibits from the scene and caution interviewed the accused. He identified the caution interview statement recorded in Hindustani language and also the English translation both of which was read before you as evidence. He has collected the knife and a singlet, glass and 2 boxes of matches. Knife was collected from the garden of Rajeshwa Nand. Knife and the caution interview statement with the translation was marked and produced in evidence.

Further answering the question put to him by defence counsel he said the accused was not known to the criminal records. He also said that he visited the crime scene, and houses there are situated in a close proximity to each other. He said that investigations revealed that Kandasamy Reddy, the taxi driver went back with the police officer and Wame Busa resisted arrest and escaped.

With regard to Corp. Chandra Deo’s statement he said he could not record it as although he requested, before giving a statement Chandra Doe resigned from the police. But when Chandra Deo’s statement was shown to him he said uniform staff may have recorded it in another investigation of damaging property against Wame Busa.

With regard to Wame Busa’s escape from arrest he again said that there was a scuffle between Kapoor brothers and Police Officers and at that time Wame managed to escape.

Further he said the crucial witness Janend Kapoor’s statement could not be obtained as although he tried his best on several occasions going to his house he later had gone to Suva.

The body of the deceased had been lying on the road which was about 1 meter lower level from the accused’s compound.

It was suggested that Kiran Devi’s 2nd statement was recorded by him as nobody has seen accused striking Randhir and therefore he made her to give a false statement 5 days later. It was denied by the witness.

He said there was nothing to doubt in accused’s statement to Police that he had complained against Kapoors and Police visited the Kapoor’s house.

Further he testified about the damage caused to the house of accused. Further he said that he found that the accused does not consume alcohol or any narcotics.

It was suggested that the witness deliberately did not record statements from independent witnesses and deliberately concealed witnesses’ statements from defence and his investigation was bias and unfair. All those allegations he denied.

The next witness was Kiran Devi. She had been living in Kapoor’s house on the day of the incident. She said she saw accused hit Randhir with the knife and then hit Kiran. Her evidence was when taxi driver came to accused’s house, Wame had gone and had a conversation and Wame had come back. When the police officers came Wame has resisted arrest and had run away. Then she has seen Martin (accused) going down carrying a knife first chopped Randhir, and Kiran had run towards her when she was standing on the door way. When accused chopped Kiran she had laid on Kiran to save him. Accused also chased Kiran’s mother and Janend. Exhibit 6 was identified as the knife accused used.

In cross-examination she denied that she was living with Kiran. She said she never heard Kapoor’s playing music loud. She denied giving two statements to police and said she gave only one statement. She further didn’t identify her signature in both statements when shown. She further denied telling the police in her statement that when she was inside the house she heard someone yelling out saying someone hit Randhir with a knife. Further she denied seeing Kapoor family fighting the police when they came to arrest Wame. She never saw Wame assaulting the taxi driver or punching the taxi.

The next witness was Rajeshwa Nand Sami.

He is living in the neighbourhood. On seeing the police vehicle coming he had come home. His wife had told him that Kapoors were misbehaving and urinating facing their house. She had further told him about Wame punching the taxi driver. He had seen Kapoor family fighting and obstructing the police arresting Wame. After Wame escaped and police went Kapoors started swearing at Martin. Randhir attacked him and then jumped over the fence and attacked Martin. Then Martin had hit Randhir and Randhir ran a short distance and fell. He had seen blood on Randhir. Then Kiran had attacked Martin and then Martin had hit Kiran with a knife. Kiran then ran towards Witnesses house and fell on the drive way. Kiran Devi had come on to Kiran to save him. His wife had begged accused not to hit them and then he grabbed the knife. He said accused hitting Randhir happened in accused’s compound.

The knife was identified and produced without any objection.

Thereafter Randhir’s mother had given a fork to Wame and had told to kill everyone in the Martins family and Wame then damaged Martins house and household items.

In cross examination he said accused does not consume alcohol. He said Kapoors were very violent that day. They used obscene language and it was intolerable. They were so drunk and uncontrollable. When Kapoor’s drink they used to urinate facing the witnesses house showing their private parts.

He further said when police left after unsuccessful attempt in arresting Wame he heard Martin’s daughters yelling as if something was happening to the girls and thereafter he has seen Randhir coming down from the direction of Martin’s house. Then Randhir had jumped and punched him. He said Randhir and Kiran were so violent as if they were possessing a devil.

He further said when Randhir fell down, Kiran ran towards Martin to hit Martin and then Martin struck Kiran with the knife.

The next witness was Vijayanta Nand the wife of witness Rajeshwa Nand. She almost corroborated the testimony of the husband Rajeshwa.

When she came out of the house she saw Rajeshwa holding Martin, and Kiran had been on the ground hurt. She said she saw Kiran getting hurt. She also testified the fact that Kapoors were behaving bad. She also testified the fact that after knife incident Indu Mati giving the fork and telling Wame to kill Martin and destroy his house.

Further she said Martin was a man with good behaviour and he had a good relationship with other people in the village.

Further she said before Wame damaged the property of Martin she didn’t see the condition inside Martin’s house.

The witness Gandhi Prasad was attached to the Police Station Labasa and he was instructed to be a fleet driver on 25/12/2001. When assistance was sought by the Police in Siberia he had conveyed police officers to the scene. When he went there in Kiran Kapoor’s compound, Kiran had been lying with blood in his body and he was taken to hospital by the other police vehicle. Then when coming back he had seen another man dead lying in a pool of blood near another house. When he went back to the station his superiors have already left to the scene.

Prosecution then called the victim of the alleged attempted murder charge Kiran Kapoor. His evidence was in the morning, he Wame and his two brothers had been drinking beer in the back of their house. When he went to the sitting room to switch on the radio he had seen a taxi parked at Martins’. After about ½ an hour police vehicle had come to arrest Wame. Wame had escaped and run away. He only had asked as to why Police wanted Wame where his two brothers were standing there.

Then Rajeshwa had come asking as to why police came and Rajeshwa put his hand around Randhir and two of them had gone on the drive way. Then he went to sitting room and had seen Martin carrying a chopper. His aunt Kiran Devi told him that an argument was going on and he had gone to see them, he heard Randhir yelling "mother save me". Then Martin reached toward him and saying ‘mother fucker I’ll chop you", had chopped him. Martin had hit him on the shoulder, neck, head and left arm and his scars still remain and he said he still suffers due the injuries. The scars were shown to you in court.

In cross-examination he said he was a dancer and during day time he used to play music and dance. After Martin complained to Police, police have warned him not to play music at night but during day time to practice dancing. Their family had been not in talking terms with Martin’s he said. He denied the allegations put to him by defence that he was misbehaving.

Next witness was police officer Navindra Prasad. He has conveyed police officers for assistance. He also testified that on how Kiran was sent to the hospital in another police vehicle and that they saw the body of Randhir. Thereafter when he was there he heard a sound like breaking glasses and has seen Wame coming from Martin’s compound.

Next witness Raveen Chand said that he too went to the scene when they were asked for extra police man power. He said Wame came running with a fork from the direction of the deceased’s house. Further he had heard a voice of somebody breaking things inside a house. When Wame came running with a fork he had kept the folk in front of them and had said that his friend is injured.

Then the prosecution called Janendra Kapoor’s wife Sushil Lata Kapoor to give evidence. She has seen Wame going to the taxi which came to Martin’s house but had not seen what happened there. She has only seen Wame talking to the taxi driver.

When Police came to arrest Wame, they had asked why the police wants to arrest Wame. When Wame was brought to the police vehicle there had been a fight between Wame and Police. When police officers took their batons out Wame had come towards them and by mistake a baton had landed on Kiran and Kiran started swearing at police. Wame had run away.

About the main incident she had seen Martin hitting Kiran with the chopper 4 times. When she saw, Martin had already hit Kiran’s arm and then she had seen Martin hitting on Kiran’s shoulder, neck and head.

She also said about Martin trying to chop Kiran again after he fell and how her aunt fell on Kiran and saved him. She had put water on Kiran inside the bathroom to stop bleeding.

She said Martin also chased after Janen her husband but Janen ran inside house. Later they have found the body of Randhir when they searched for him on the side of the road way.

In cross-examination she said her husband Janen never evaded the police to give a statement but police arrested Janen and assaulted him.

Then prosecution called Indu Mati to give evidence. Indu Mati is the mother of the deceased Randhir and Kiran. She also said Wame went to the taxi and she then called Wame back. When police came Wame had fought with the police.

After Police came Rajeshwa and Randhir had gone down the drive way. When she was in the sitting room she has seen Martin running with a chopper.

She heard loud voice saying "save me save me somebody is chopping me with a knife". Then she has followed Kiran and she had seen Randhir covered with blood and had seen Martin chopping Kiran several times. When Kiran fell, Martin had hit on his head. Randhir had said "mother save me". Martin then also chased Janen. Also grabbed her from hair keeping knife on her neck and said’ I will finish you off. Rajeshwa had grabbed the chopper from Martin. She said Randhir had a cut across his chest and could see his internal parts of body.

Prosecution called Wame Busa next. On the day of the incident morning he had gone to get a taxi with Kiran and on the way they bought beer and drank one bottle in the taxi itself. When they were drinking beer in the back of Kiran Kapoors house a taxi came to Martins house. He had asked the taxi driver to go to buy beer which he refused. Then he punched the driver. Kirans mother called him and they were drinking again when police came to arrest him. When he refused to go with police they started beating him and he escaped and ran away. After about 15 minutes he heard a cry and when came to see that Randhir was wounded. He saw Randhir dead. Kirans aunt had told him that police took Kiran to hospital. He got angry got a folk and damaged Martins house. Martin ran away he said.

In cross examination he denied Kapoors getting involved in a fight with police when police tried to arrest him.

Shobana Devi Lal who was earlier married to the deceased Randhir Kapoor was called to give evidence. At the time of the incident she was separated from Randhir. She has two children from Randhir. She had got to know about Randhir’s death and come to Labasa for the funeral. In cross examination she told court as to how she was ill treated and harassed when she was living with the Kapoors family.

At the end of the prosecution case you heard me explain several options to the accused. He had these options because the prosecution at all times has the burden of proving his guilt. Accused doesn’t have to prove anything. He could have remained silent. He chose to give evidence and to subject himself to cross examination. You must give his evidence careful consideration. Further the accused called three more witnesses to give evidence on his behalf out of which two were originally named in the list of witnesses for the prosecution where you have to give careful consideration

Accused said that after his wife’s previous husband Augastin died as there was nobody to earn for the family and as his wife Satya was unemployed he settled with Satya in 1996 after getting blessings from the church. Later they got their marriage registered. He accepted the children of Satya as his own children.
He was living with Satya in Siberia Branch Road. His relationship with neighbours were good except with Kapoor family. He told court as to how houses are located in the neighbourhood.

He never consumed any alcohol .He told court how Kapoors were misbehaving and how it was intolerable. He told court about incidents where Randhir was exposing his private parts to his daughters and other incidents of misbehavior like peeping into the bathroom when daughters were bathing.

On the day of the incident when he was in his compound after lunch he heard Kapoors calling him saying ‘Martin Bocilevu, Martin Sonalevu’. He had not gone. Then he told court as to how the visitors came to his house in a taxi and how Wame punched the taxi driver and the taxi. Randhir, Kiran and Janen had also been there. Then he told court about the incident as to what happened when police came to arrest Wame. Kapoor brothers and their mother had fought police. During the scuffle Wame had escaped.

Then Kapoor’s started swearing and Kiran, Janen and Randhir started moving towards his house stating ‘Mother fucker you informed the police and called them and today mother fucker we will finish you’. This happened immediately after the police left he said. He had not said anything. Then Wame also had joined them. They came inside the house and assaulted him. Started to drop all things inside the house. He said they were drunk and behaved like devils. He felt his life in danger. When assaulted he had fallen down. Then he saw Wame and Randhir holding her daughter. Sleeve of her dress was torn. Then he got hold of the knife and chased them away. He said when he was assaulted and when his daughter was grabbed he felt very week so that he can’t save his family. When they went out he was chasing Wame. He had the knife with him. Then he saw Randhir assaulting Rajeshwa. Then Randhir had come to him swearing "Mother fucker bastard what can you do to me I just entered your house and assaulted you and made your daughter naked can you do anything to me" and had started punching him. He said then he couldn’t control himself and to defend himself he used both hands to defend. He demonstrated how he acted. He said he didn’t know whether the knife hit Randhir. Then Randhir went downwards and Kiran had come towards him. He said at that time he was out of his mind, very angry couldn’t control himself, felt that Kiran would hit him. As he charged him he hit Kiran with the knife. He said he hit Kiran when Kiran started punching him.

He again demonstrated how he acted. He said all these happened in his compound. The medical report to show the injuries received by him was produced without objection.

In cross examination he said he didn’t know about blood stains not being found in his compound. He confirmed that this happened in his compound. Further he said he did it in self defence of him and his family.

On behalf of the defence the wife of the accused Satya Wati Shayam gave evidence. She corroborated the evidence of her husband as to how she got married to the accused after the death of her previous husband. Further she corroborated the evidence of the accused on Kapoor’s misbehavior as neighbours and further on Wame assaulting the taxi driver on that day. She also said about how Kapoor brothers entered their house and damaging the house and things inside and assaulting the accused, and how the accused chased them away with the knife in hand. Then she had gone to a neighbours house and stayed until the police came.

The next witness for the defence was the police officer Chandra Deo who went to arrest Wame on that day. He explained to court as to how Wame and the Kapoor brothers and their mother behaved when they went to arrest Wame. How they obstructed their duty and how Wame escaped. His evidence was unchallenged.

Further witness Police officer Binesh Chand corroborated the evidence of Chandra Deo.

Madam and gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution and defence. If I did not mention a particular witness or a particular piece of evidence that does not mean it’s unimportant. You should consider and evaluate all the evidence in coming to your decision.

Which version you are going to accept whether it is the prosecution version or the accused’s version is a matter for you.

You must decide which witnesses are reliable and which are not.

You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.

Prosecution says the accused is guilty of murder of Randhir Kapoor. Defence invites you to accept the evidence of defence that the accused acted in self defence and provocation.

Prosecution says that the accused is guilty of attempted murder of Kiran Kapoor. Defence invites you to accept their evidence that the accused acted in self defence.

You may use your commonsense when deciding on the facts.

I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused has been proved.

Your possible opinions are;

On Count No.1. Guilty of murder or guilty of manslaughter or not guilty of any offence.

On Count No.2. Guilty of attempted murder or guilty of act with intent to cause grievous harm or not guilty of any offence.

Madam and Gentlemen assessors, this concludes my summing up of the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

You may retire to consider your opinions.

Priyantha Fernando
Puisne Judge

At Labasa
14 May 2010