State v Sharma [2011] FJHC 225; HAC045.2008 (15 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. : HAC 045 OF 2008

BETWEEN:

THE STATE

AND:

SACHINDRA NAND SHARMA

Counsels : Mr. J. Daurewa for the State
Ms. N. Nawasaitoga for the Accused

Date of Hearing : 28th March 2011 to 6th April 2011
Date of Summing Up : 15th April 2011

SUMMING UP

1. Ladies and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Counsel for the Accused. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel and Counsel for the Accused made their submissions. That is their duty. The prosecutor to submit how she proved the case and Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused person is guilty or not guilty to offences he is charged with.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case, those are not evidence. What you heard and saw in the Court are evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable?

10. The Director of Public Prosecution had preferred following charges against the accused.

"SACHINDRA NAND SHARMA s/o SADA NAND is charged with the following offence:

COUNT ONE

Statement of Offence (a)

ATTEMPTED MURDER: Contrary to Section 214(a) of the Penal Code, Cap.17.

Particulars of Offence (b)

SACHINDRA NAND SHARMA s/o Sada Nand, on the 9th day of November 2007 at Vatuwaqa, Suva in the Central Division, unlawfully attempted to murder POONAM PREMIKA SHARMA d/o Davendra Prasad.

COUNT TWO

Statement of Offence (a)

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 224(a) of the Penal Code, Cap.17.

Particulars of Offence (b)

SACHINDRA NAND SHARMA s/o Sada Nand, on the 9th day of November 2007 at Vatuwaqa, Suva in the Central Division, with intent to do some grievous harm to KRISHNEEL PRASAD s/o Davendra Sharma, unlawfully wounded the said KRISHNEEL PRASAD s/o Davendra Prasad.

COUNT THREE

Statement of Offence (a)

ARSON: Contrary to Section 317(a) of the Penal Code, Cap.17.

Particulars of Offence (b)

SACHINDRA NAND SHARMA s/o Sada Nand, on the 9th day of November 2007 at Vatuwaqa, Suva in the Central Division, willfully and unlawfully set fire to the dwelling house of DAVENDRA PRASAD s/o Deo Dutt Sharma, which fire then spread to the dwelling house of SURESH CHANDRA s/o Ram Chandra resulting in the complete destruction of SURESH CHANDRA'S s/o Ram Chandra dwelling house and its contents, with the estimated value of FJD$8,000.00; and also spread to the dwelling house of GOPI NATH s/o Jokhan resulting in the complete destruction of GOPI NATH'S s/o Jokhan dwelling house and its contents, with the estimated value of FJD$8,000.00.

11. Accused is charged with Attempted Murder of Poonam Premika Sharma. You have to consider whether the State had proved all ingredients of this offence beyond reasonable doubt.

Section 214 (a) of the Penal Code (Cap 17) states as follows:

"Any person who: (a) attempts unlawfully to cause the death of another is guilty of a felony, and is liable to imprisonment for life."

12. It is alleged that the accused caused grievous harm to Krishneel Prasad, Section 224(a) of the Penal Code states as follows:

"Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-

(a) unlawfully wounds or does any grievous harm to any person by any means whatsoever, is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment."

13. In the 3rd Count it was alleged that the accused committed an offence of Arson by setting fire to 3 houses belonging to Davendra Prasad, Suresh Chandra and Gopi Nath. Section 317(a) of the Penal Code states as follows:

Any person who willfully and unlawfully sets fire to-

(a) any building or structure whatsoever, whether completed or not; is guilty of a felony, and is liable to imprisonment for life.

14. It is agreed between State and accused that all ingredients need not be proved except the identity of the Accused. The only ingredient to be proved is that the accused Sachindra Nand Sharma had committed the offences.

15. The Prosecution says that all acts were done by the accused Sachindra Nand Sharma. The accused denies this. Now it is your duty to consider the evidence before the Court.

16. Prosecution brought Poonam Premika Sharma as the 1st witness. She told Court that she was married with two children at the relevant time, she was separated from her husband. She was working at Swan Garments. She had commenced an affair with her Supervising Officer, Sachindra Nand Sharma, who is the accused. This had continued for some time. Both were living together as husband and wife for nearly 3 years. Both occasionally live together and lived separately.

Anyhow, after August 2007 she claims that she came back to her parents home at Waidoga Settlement at Vatuwaqa. On 8th of November 2007, day before Diwali the accused had called and met Poonam. Witness says she had been disturbed and harassed by the accused on that day. The accused had gone to the place she was working. Thereafter the accused had drinks with Poonam's brother Krishneel Prasad. In the evening accused had gone to Poonam and gave her a gift, she had refused to accept. Thereafter the accused had sent her brother to arrange a meeting between them. That was turned down by Poonam. Anyhow they had met on that day because the accused had made an emergency call to Poonam, she says that she had categorically told accused that she doesn't want to continue the affair between them. Later in the evening at 8pm on 8/11/2007 the accused had gone to meet Poonam at her work place. At that time the accused had gone there with Krishneel Prasad. Poonam says she escaped meeting of accused with the help of her office mates Deve. When she had attempted to go with her friend Sheetal in a taxi the accused was furious and swear at her saying "mother............(edited) I will kill you"

Thereafter she had gone to Hansons Supermarket to do her Diwali shopping, there too she was followed by the accused. She got scared and called her parents. On their instructions she returned home in a taxi. The accused had followed them in a van being registration number FO.000.

To avoid him, Poonam had diverted the taxi to Blind Society. There too she had been followed by the accused. According to Poonam she had called her mother to bring Joji to rescue her. When the accused saw Joji he had withdrawn from the scene.

Thereafter Poonam had involved in making sweets. Accused continued calling her on the mobile. She had avoided phone calls, then the accused called Poonam's father. He told the Accused not to call her. It was very much late in the night but accused continued calling Poonam. After 2.00am she had gone to bed. In the room she sleeps with her daughter who was 4 ½ years old at her brother Krishneel Prasad. When she was sleeping she heard accused calling "Poo, Poo", and pulling off her mosquito net. She also felt kerosene and benzene smell in the room. Accused had told her "I love you, sorry". Thereafter all of a sudden her room burst into fire. Then she had clearly identified the accused. She saw hair in the forehead of her daughter was burning. Poonam had cried for help and tried douse the fire. Poonam's mother grabbed the child and took her out. When Poonam tried to escape from the fire the accused had come there, punched on her face, stabbed her seven times with a knife and pulled her towards the fire. At one occasion the accused had pulled her to the fire but her mother held her legs and pulled her out of the house. Father Davendra Prasad came after them and assisted Poonam to get away from the fire. In the meantime Poonam's brother Krishneel who was drunk caught fire and seriously burnt. According to Poonam, Ashika and Davendra Prasad had seen the accused was there and running away from the scene of crime.

17. You should be mindful of the evidence given by the accused and other Defence witnesses. Accused accepted certain incidents. But he says that Poonam and he had an affair although it was broken, they continued to be good friends.

On the 8/11/2007 he met Poonam late in the evening thereafter he had gone with his friends. He was not there at the scene of crime at the relevant time.

His evidence was corroborated by her friends.

Accused said at 9.00pm on Diwali eve, i.e. 8/11/2007 he was at Salendra Singh's place at Kinoya. The accused and his friends had grog session till 2.30am. Salendra Singh confirming this portion.

After the accused had been with Salendra Kumar outside of Sailen Singh's house, he had gone in a taxi to Shirvesh Sharma's house. Taxi driver Mahen Prasad gave evidence and confirmed that position. Mukesh Chandra gave evidence in this court and confirmed that the accused was with him from 9.00pm to 2.30am on 8th & 9th November 2007. Shirvesh who is the cousin of the accused confirms that the accused came to his place at 3.00am and had grog session till 4.30am. Thereafter accused slept at his place and in the morning at about 6.30am he had dropped the accused at the bus stand of Nausori to go to Tavua.

18. In the meantime the distance between these places are as follows:
    

Waidoga, Vatuwaqa to Kinoya – 2km.

Vatuwaqa to Waila, Nausori – 12/14 km.

19. Now you have two versions before you. The Prosecution witnesses submit that the accused was at Waidoga, Vatuwaqa at the relevant time i.e. 2.45/3.00am. But the accused and Defence witnesses says that he was at Kinoya and Waila, Nausori at that time. How do you decide which is correct.

20. There are several methods you can use, to suggest a few:-
    

(a) Use your common sense. Can a person stay at two places or is it possible to have quick transportation.

(b) Whether witnesses are giving evidence with vested interest

(c) Are the witnesses telling the truth?

How do you test whether they are telling the truth?

One of many ways is how they withstood in the cross-examination.

The next method is the demeanor of the witnesses.

(d) You can consider the previous and subsequent conduct. In this case you may consider the previous conduct of the witness and the accused. The accused said that he was maintaining his wife and children further he said that he and Poonam were close friends to the extent of calling regularly and giving and asking gifts to each other. Was this practice continued after the day of the incident namely 9/11/2007. The accused said he had not called or contacted his wife until February 2008, i.e. until the Police brought him from Labasa to Nabua. Further he said he had not called his friend Poonam during this time. Is it normal or abnormal you have to decide by yourself.

21. I wish to summarize the evidence given by the witnesses for the Prosecution, Defence and the accused. This does not mean that you have to consider only that. I request you to consider the entire evidence given by all.

22. 1st witness called by the Prosecution was Poonam Premika Sharma. She is married with two children, separated from her husband, had an affair with the accused. It was on and off affair. Anyhow they were discontinued from September 2007.

She claims the affair ended after 2 weeks from September 17th 2007. They met at several occasions thereafter and it was not friendly meetings. Accused had threatened her by saying "I will kill you". On the 8th it had taken a serious turn when she refused to accept a gift and go out for dinner.

She says that it was accused who called her on the wee hours of the day on 9/11/2007. She said only accused calls her "Poo" no one else calls her in that manner. She heard accused says "I love you and sorry". Then the house was set ablaze and she was pulled into the fire. She saved her daughter who is 4 ½ years from fire and manage to escape from the claws of death. She had several stab injuries on her thighs and breast. This is confirmed by the medical report also.

23. The 2nd witness was Ashi Kala who is the mother of Poonam and Krishneel. She said she knew the affair between her daughter Poonam and the accused. She corroborated most part of the evidence of the 1st witness. She spoke of happenings on the evening of 8/11/2007. She said she received call for help from her daughter Poonam as she went to receive her daughter to the roadside with Joji, there she had seen the accused followed her. It had happened at about 8.30pm.

She heard her husband Davendra Prasad received a call on his mobile from accused. When the accused called again on her husband's phone she had attended the call and told him that she won't give it to Poonam and not to call and disturb her. She said she attended the phone on 3 occasions at that time.

She said her son Krishneel had come home drunk at about 1.30am and told her and Poonam to talk to accused, if not the accused will kill her. Since he was heating trouble at that time, Joji the neighbour was brought to control him.

When she went to sleep it was 2.00am. After a while she heard the cry of her daughter when she rushed to her room she saw it was on fire. She used a blanket to douse the fire on her grand daughter.

She had told Poonam to take her daughter away for her to save her son Krishneel who was sleeping when she was trying to save him, her grand daughter had told the accused was beating up Poonam. Then she had run to save her daughter. She had called her husband to save their son.

She heard Poonam crying for help. She had seen her daughter couldn't walk. And the accused was pulling her into the fire. The witness held Poonam's legs and tried to pull her out of the home to save her. She had called her husband to help them. Both of them got hold of accused and saved Poonam. She said the entire incident would have happened within 30 minutes.

She was questioned about the light condition to identify the accused. She categorically said that she knows the accused very well and there was sufficient light from burning flames to identify the accused.

24. Davendra Prasad was the 3rd witness called by the Prosecution. He is Poonam's father. He was at home on the 8/11/2007 drinking grog with his friends. At about 9.30pm he had received a call from accused. The accused wanted to talk to Poonam. This witness had told the accused not to call and not to speak to Poonam.

When the accused called again his wife Ashi Kala and told not to speak to Poonam.

When the accused called on the mobile for the 3rd time it was picked up by Suken one of their relative and the witness had told him to disconnect the phone.

He also speak of his son's arrival and Joji's presence at that time.

He confirms that their daughter called them in the night (very early morning) about the accused. When he went to her room, fire had already commenced. He had grabbed the granddaughter and took her to Suresh Chandra's house. Then he had come back and saved his son. He had seen his son was badly burnt.

When he heard his wife crying for help from inside of the burning house, he ran into the house there he had seen, the accused dragging Poonam into the fire in the same time his wife Ashi Kala pulling Poonam's legs to save her. He had gone front of accused and grabbed him. Since accused had lived with them in their house he identified the accused at that time.

All three of them had scuffle with the accused to save Poonam. Accused got out of them and ran away. Davendra Prasad had seen his daughter was bleeding on the face.

Fire brigade was called and they doused the fire. He had observed his house and other two neighbours' houses were burnt to ashes. Presently he lives with a friend of him, sharing the rent.

25. The 4th witness was Krishneel Prasad. He is Poonam's brother. He gave evidence to the fact that the accused and his sister had an affair and he knows accused for more than 2 years as at 2007.

On 8/11/2007 he had met accused at Suva town and they had gone for a meal and both of them had consumed beer. Thereafter they had gone to "Sunrise" which is at 3 miles, to play billiards. At that time accused had told him that he had bought a gift, a sari worth of $500 to Poonam. Krishneel on the request of accused had gone to Poonam's work place to bring Poonam to talk to accused. She had told him she doesn't want to talk to accused and chased him away. When he came and told that to accused he had told him he will kill her.

He further spoke of the incident at 8.30pm at the back gate of Poonam's work place he had seen accused was following his sister Poonam.

He had returned home at about 1.30am and made a fuss when Joji was called he had gone to sleep.

When he was caught fire he realized the house was on fire. He doesn't know who set fire to the house and what happened. He was hospitalized and treated by the Doctor at CWM Hospital. You saw part of his burnt marks in open court. Medical Report says he had received 41% mixed partial and superficial thickness burnt injuries. He said, even now he has pains in his right arm.

26. Inspector Maha Ram was the 5th and last witness called by the Prosecution.

He said he has 34 years experience in the Police Force and he was the Investigating Officer in this case. He had recorded the Caution Interview of the accused.

After the incident the accused was missing and he was located at Labasa and arrested on 25/02/2008, almost 3 ½ months later. With this witness the State Counsel closed the case for the Prosecution.

27. When the Defence called the accused opted to give evidence. You may be reminded again. Proving the case is entirely in the hands of the Prosecution. The accused need not prove his innocence. Even though he is not obliged, the accused elected to give evidence and gave evidence from the witness box.

28. Accused told the Court that he is married with two children and he had an affair with Poonam.

On 8/11/2007 at about 9.00pm he was at Salen's place at Kinoya. His friends Mukesh Chandra, Iqbal Khan, Sailen Kumar, Ronald Singh and accused had grog session. Thereafter he had drinks. This session had gone between 9.00pm to 2.30am.

After that Sailen Kumar and accused had drink outside Sailen's house, he got into a taxi and went to Waila, Nausori to his cousin Shirvesh Sharma. It was about 3.00am. There too, both of them had grog till 4.30am. Thereafter the accused retired to bed. In the morning, he took $50 from Shirvesh and got himself dropped at the Nausori bus stand and went to Tavua.

In short he said he was elsewhere at the time of incident.

He said, when their affair broke, Poonam attempted to commit suicide on 3 occasions. He said even though they are not having an affair they are good friends.

After 8/11/2007, he had seen Poonam only on 25/2/2008 at the Police Station.

The accused completely denied committing these offences.

29. Shalendra Singh was the next witness called by the Defence. He told court that on 8/11/207 the accused with other friends were at his place having grog. The accused was at home till 1.30-2.00am.

30. Mahen Prasad was the next witness for the accused. He was the taxi driver who transported accused to his cousin's at Waila, Nausori. It was around 2.45am on 9/11/2007. At 3.00am he had taken the accused to Waila, Nausori. When the State Counsel cross-examining the witness, he admitted that he didn't tell this to the Police. To the contrary he told the Police that at no time he had picked accused at midnight or early morning on the day in question.

31. The next witness called by the Defence was Shirvesh Nand Sharma. He was the cousin of the accused. He said that on the 9/11/2007 the accused came to his place at 3.00am and had grog with him till 4.30am and went to sleep. Thereafter he had dropped him at the Nausori bus stand to go to Tavua at 6.30am.

32. The last witness called by the accused was Mukesh Chandra. He stated to Court that the accused was with him and other friends from 9.00pm to 2.45am. He also confirms that he called Poonam at about 2.30am on the instructions of the accused.

33. Thereafter you heard both Counsels addressing the court.

34. The Defence of Alibi, that means he was elsewhere at the time of the incident is taken 1st time in this court in March 2011. Further this was not informed to Police Investigators at the time of investigations. You may consider the fact with the explanation given by the accused that he waited till the matter to be taken up in court.

35. Once again I wish to remind you that it is the duty of the Prosecution to prove the case beyond reasonable doubt. It never shifts to accused at anytime.

36. You should consider each count separately and arrive at your own conclusion. If you find that accused guilty on one count it does not mean you have to find him guilty as other counts as well. Each and every count stands separately and it should be proved separately.

37. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt and you are not sure of it. You must find the accused not guilty as charged.

38. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

39. Let me ask both State Counsel and the Counsel for the Accused whether they have anything to be addressed to you?

State Counsel: No I am Happy.

Defence Counsel: 1. Poonam had not told the presence of a kerosene lamp to police, that may be addressed.

Assessors were explained of the light Condition at the time of the incident.

40. Now let me ask the Assessors whether they need any clarification.

Assessors inform the Court they are happy with the summing up.

41. You may retire to deliberate. I may, request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused