State v Padiyachi [2011] FJHC 436; HAC016.2010 (4 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 016 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. RAVINESH PADIYACHI
2. MOHAMMED NADIM
ACCUSED PERSONS

Counsel: State - Ms. Puamau. S & Ms. Prasad. J
Accused Persons - Mr. Valenitabua. S

Date of Hearing: 19th, 20th, 21st, 22nd, 25th, 26th, 27th, 28th July, 2011.
Date of Summing Up: 2nd August, 2011.
Date of Judgment: 4th August, 2011.

JUDGMENT

[1] The two accused persons in this case are charged with the following offences:

FIRST COUNT

Statement of offence

MURDER: Contrary to Section 199 and Section 200 of the Penal Code, Cap.17

Particulars of Offence

RAVINESH VIKASH PADIYACHI f/n Pushpa Padiyachi and MOHAMMED NADIM f/n Mohammed Janif on the 14th day of December 2009, at Nakasi in the Eastern Division murdered RAMKRISHAN AMIRTHANLINGAM also known as RAM.

SECOND COUNT

Statement of Offence

MURDER: Contrary to Section 199 and Section 200 of the Penal Code, Cap.17

Particulars of Offence

RAVINESH VIKASH PADIYACHI f/n Pushpa Padiyachi and MOHAMMED NADIM f/n Mohammed Janif on the 14th day of December 2009, at Nakasi in the Eastern Division murdered RAJAMANICKAM VENKATACHALAM also known as GUNA.

[2] After deliberating for 1 hour and 20 minutes the Assessors returned their unanimous opinion that both accused persons are guilty of Count No. 1.
The Assessors expressed their majority opinion that both accused persons are guilty of Count No. 2.

[3] I direct myself in accordance with my Summing Up and the evidence
adduced at the trial.

[4] The parties agreed that one of the bodies found at Benai, Ba on 16th January 2010 and properly excavated on 17th January 2010 belongs to Ramkrishan Amirthanlingam. Therefore the Prosecution has to prove beyond reasonable doubt that the other body found is of Rajamanickam Venkatachalam. Both Ramkrishan Amirthanlingam and Rajaminckam Venkatachalam were living in Nakasi and the Manager of their company the 1st Accused, was living with them in their house. It is evident that both the victims were last seen with the two accused persons on 13th December 2009 in the evening at their house in Nakasi. Both of them were missing from 14th December 2009. On 15th December 2009 the two accused persons were seen at Benai, Ba at the property of the 2nd accused's father.

[5] Eye witnesses Ajendra Prakash and Mohammed Moshin testified to the fact that both accused persons were there at the 2nd accused's house at Benai, Ba on the 15th December 2009. The house at Benai, Ba belonged to the 2nd accused's father Janiff, and it had been vacant at that time.

[6] Accused persons have gone to Benai, Ba in the vehicle Toyota Hilux which belonged to the victims company. They also have seen a pit dug at the back of the house. Thereafter the two bodies were found buried at the same place at Benai, Ba.

[7] Police officer PC Jolame had uplifted the tooth brush labeled RA3 on 18th January 2010 from the washroom of the house in Nakasi where both victims lived.

[8] According to the report and evidence of the Forensic Scientist Dr Donelly, the DNA profile obtained from the said tooth brush RA3 matches the DNA profile obtained from the thigh bone of the body No.1. DNA profile taken from the thigh bone of Body No. 2 matched with the DNA profile taken from the Buccal sample of Lakshmi Amirthanlingam who is said to be the twin brother of Ramkrishan Amirthanlingam. Parties agreed that one of the bodies is of Ramkrishan Amirthanlingam. Therefore the remaining unidentified body is body No.1 and the DNA profile matched with the tooth brush labeled RA3 uplifted from their house in Nakasi.

[9] It was further evident that according to the travel history document produced in court that the said Rajamanickam Venkatachalam has not left the country. On the evidence above including the DNA evidence I find that it is very much safe to infer that the remaining unidentified body is of Rajamanickam Venkatachalam.

[10] To prove the two counts in the information against the accused persons, the Prosecution relies on circumstantial evidence. There are no eye witnesses who saw the accused persons committing the unlawful act.

[11] According to the Post Mortem reports and the evidence of Pathologist both the victims were killed by cutting their necks by a sharp weapon. Cause of death of the body No.1 was Excessive loss of blood from the cut injury to the neck and the cause of death of the body No.2 was excessive loss of blood from multiple cut injuries to neck. The Prosecution has to prove beyond reasonable doubt that the said cut injuries to the necks of the victims, the unlawful acts, were caused by the two accused persons.

[12] According to the evidence of Dr Goundar the Pathologist, all internal organs were putrefied, decomposed and regormortis was absent. He said that in his opinion the estimated time of death would be approximately 3-5 weeks prior to the date of Post Mortem examination. However in his reports exhibited as P15 and P16, he has written the estimated time of death as 6.30pm on 16th January 2010.

[13] Clarifying the discrepancy Dr Goundar said that when they give Post Mortem reports they give the estimated time as the Police give them. Prosecution submitted the request for the Post Mortem examination forms filled by the Police as exhibits. In those forms requesting for a Post Mortem to be held, they have mentioned that the bodies were found at about 6.30pm on 16/01/2010. I find that the Pathologist has entered the same time 6.30pm on 16/1/2010 which was written by the Police as the estimated time of death. There is sufficient evidence lead and is proved beyond reasonable doubt that the two bodies were found buried at Benai, Ba on 16/1/2010 evening.

[14] Witnesses Hans Raj, Kaminieli Rokotavaga known as Junia including the Police officers who went to the secondary crime scene at Benai, Ba testified to that fact. Therefore considering the above evidence, and the state of putrefaction of the bodies, I accept the opinion of the Pathologist that the estimated time of death of the victims was 3-5 weeks prior to the Post Mortem examination.

[15] The Prosecution adduced following evidence on the circumstances of the death of the two victims.

(i) That, the victims were seen last on the 13th December 2009

evening at 33 Willow Street, Nakasi with the two accused persons. That, on 14th December, the 1st accused had told that the victims had gone to the west. That, on 15th December 2009 the two accused persons were seen at the residence of the 2nd accused at Benai, Ba. At that time the house had been vacant. That, two witnesses have seen the accused persons and they have seen a pit dug in the back yard of the house. That, the vehicle Toyota Hilux belonged to the victims company had been parked there in the property at Benai, Ba. Front of the said vehicle had been facing the front of the property and the back tray had been facing the back side of the property. That, after the victims went missing the said vehicle was used by the 1st accused. The vehicle was later repossessed by the Merchant Finance Company. Although the 1st accused had told that the victims went to the West, the vehicle which was used by the victims had been there with the 1st accused. That, the bodies alleged to be of the victims, were found buried at the same 2nd accused residence at Benai, Ba on the 16th January 2010. One of the bodies found was agreed to be of the victim Ramkrishan Amirthanlingam.

(ii) That, blood like stains were found at the victims house at Nakasi

and some of them were tested positive for blood. Blood like stains found in the back tray of the vehicle was tested positive for blood. That, the last telephone call taken from the phone No 8686364 which belongs to a victim was at 2.10 am on 14th December 2009. That, after the victims went missing the witness Roshni Singh noticed that the rug which was in the living room was missing. When she inquired from the 1st accused, he had told her that Ram and Guna had vomited and that they washed the rug.

[16] Accused persons remained silent which is their right to do so. I bear in mind that the burden is on the Prosecution to prove the charges beyond reasonable doubt and that the accused persons need not prove anything.

[17] Upon careful consideration of all the circumstances in the light of my direction to the Assessors it could inescapably be inferred that the 1st and 2nd accused persons did commit the unlawful act to cause the death of the two deceased persons acting in joint enterprise. I find that the prosecution has proved beyond reasonable doubt that the 1st and the 2nd accused are guilty of counts 1 and 2 in the information.

[18] Accordingly I agree with the unanimous opinion of the Assessors that the 1st accused and 2nd accused are guilty of committing the offence of murder in count No.1 and with the majority opinion of the Assessors that the 1st and 2nd accused persons are guilty of committing the offence of murder in count No. 2. Therefore, I find the 1st and the 2nd accused persons guilty on counts No.1 and 2 in the information.

[19] I convict the 1st and 2nd accused persons on Counts No.1 and 2 in the information.

Priyantha Fernando
JUDGE

At Suva
04/08/2011