State v Prasad - Judgment [2016] FJHC 44; HAC80.2014 (2 February 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 80 OF 2014

STATE

-v-

NEETIN AJESH PRASAD

Counsel : Mr. S. Nath for the State
Mr. W. Pillay for the Accused

Date of Summing Up : 27th January, 2016
Date of Judgment : 2nd February, 2016

JUDGMENT

1. The Accused was charged with the following count and was tried before three Assessors.
   

Statement of Offence

Attempted Murder: Contrary to Section 44 and 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

NEETIN AJESH PRASAD on the 5th day of June 2014 at Nadi in the Western Division, attempted to murder Irene Rita Raju by striking her with a cane knife.

2. Assessors found the Accused not guilty of Attempt to Commit Murder and unanimously found him guilty of alternative count of Act with Intent to Cause Grievous Harm.

3. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.

4. The Prosecution says that the Accused, by striking his wife, Irene, (victim), with a cane knife several times on most vulnerable parts of her body, causing grievous injuries, attempted to kill her. Defence, on the other hand, says that the Accused did not intend to kill her and he was angry at her avoidance to talk to him and, he was out of his mind at the time of the incident.

5. The Prosecution relied on the evidence of DC Gupta, Reena Devi, Meenal Raju, Lata Kumari, Doctor Samuela and his medical report, cautioned interview and the charge statement of the Accused to prove its case.

6. The Court finds evidence of the Prosecution credible, truthful and believable. The wife of the Accused, Irene, who was called by the Prosecution, was not credible and believable when she said that she did not remember anything what happened to her after the conversation with the Accused. She was for some reason trying to suppress the true story from coming out. She said that she did not want to give evidence and put his children's future in trouble. Her obvious reluctance to give evidence against her husband did not affect the credibility of the Prosecution case. Two eye witnesses corroborated each other and the doctor's evidence as well as the cautioned interview of the Accused confirmed the eye witness account.

7. I am also satisfied that the evidence of the Prosecution has proved each element of the offence beyond reasonable doubt.

8. There is no dispute in this case about the identity of the Accused. Accused was known to the main eye witnesses of this case, Reena Devi and Meenal Raju, prior to the incident. Both of them had recognized the Accused and positively identified the Accused in Court.

9. The most crucial issue to be resolved in this case is whether the Accused intended to kill his wife, Irene Rita Raju. Before coming to that issue, I draw my attention to the third element that is whether Accused did something which was more than mere preparation to killing her.

10. Both eye witnesses, Reena Devi and Meenal Raju said that they saw the Accused holding an old cane knife with blood while Irene was shouting for help with cut injuries.

11. According to Reena Devi's evidence, this is what Reena Devi heard from Meenal Raju ....

"Meenal had seen Neetin pulling the hair of Irene while she was shouting. Neetin was holding a knife with blood and trying to hit it again. Meenal had told her, 'Neetin was cutting Irene', and pleaded her to go and save her. Then she ran to her".

12. According to Reena Devi's evidence, this is what she actually saw when she arrived at Irene's place....

"Neetin was hitting again. She (Reena Devi) got hold of his hand. Irene's body was full of blood with cut injuries. Injuries were on her face, fingers and arms. Neetin was holding a thin, old cane knife".

13. Meenal Raju said:

"Irene was being dragged on the ground by her hair and blood dripping from the knife Neetin was holding. Then she called out her mother who went there and held Neetin and prevented him from hitting the 'final strike".

14. None of the Prosecution witnesses had actually seen Neetin cutting or striking Irene with a cane knife. However, only logical and reasonable inference that this Court could draw from the proved facts and circumstances is that the Accused struck Irene with the blooded cane knife he was holding.

15. In the cautioned interview, the Accused had admitted that he struck Irene with a cane knife. I am satisfied that the cautioned interview statement contained truthful statement of the Accused. There is no evidence to find that it was obtained by the Police employing illegal means. Accused had made the partial confession on the second day of the interview on the 6th of June, 2014, after a long sleep. Other evidence led in the trial corroborated his statement to Police. In the charge statement, which was tendered as an agreed fact, Accused had specifically admitted striking his wife with a cane knife.

16. Having considered all these pieces of evidence, I am satisfied Neetin struck Irene with a cane knife and have no difficulty in coming to the conclusion that Neetin's act is something more than mere preparation.

17. Then I considered whether the Prosecution had proved that the Accused did so with the intention of killing Irene. This is the most crucial issue to be resolved in this case before coming to the final conclusion.

18. To form my own opinion on the intention of the Accused, I considered the relevant evidence which I thought would be helpful to determine the state of mind of the Accused at the time of the alleged act.

Cautioned Interview

19. First of all, I analyzed the cautioned interview to determine the Accused's intention and the motive of the Accused. To determine the intention of the Accused, it is important to consider whether he had any motive to kill his wife Irene. If there is evidence of such a motive, Court could draw certain inferences with regard to his intention.

Accused had told Police in his cautioned interview that:

1. He and Irene, after an argument, were living separately for six months prior to the incident. Irene was not on good terms with him because she was evading him and stopping him from accessing his two sons.
2. He was suspecting her for having an affair with her uncle's son.

100. He had used a different SIM card to call her, impersonating himself as Raju, and had come to know that she was going to accompany her uncle's son to lodge a complaint with Police against him for harassment.

4. The family dispute was before Court where a Domestic Violence Restarting Order was pending against him.
5. On the day of the incident, Irene was evading him and wanting to go somewhere which conduct he says had angered him to strike her with a cane knife.
   

Accused's admissions in the cautioned interview strongly suggest that he had a motive to stop his wife from complaining to the authorities against him.

20. Accused admitted swinging the cane knife thrice at Irene. First one on her face causing deep cuts, second strike was defended with her hands resulting cut injuries and the third one; he was not aware where it landed causing her to fall down. Not content with the results of terrible injuries already caused, Accused was aiming for the 'final shot' when Reena Devi intervened.

21. Accused, at the Police Station on the 6th of June 2014, denied having had an intention to kill his wife. In the charge statement which was tendered as an agreed fact, Accused says "I admit striking my wife Irene with the cane knife but my intention was not to kill her". The denial that was reported on the following day with Police would not help to resolve the issue of intention which he would have had at the time he struck the cane knife on the 5th of June, 2014. Court finds, in combination of other strong unimpeached evidence led in the trial, that the Accused had intended to kill his wife and with that intention he carried out the attack.

22. There is no evidence that he brought the cane knife from home. It was on the ground of Irene's compound. That fact will only prove that the attack was not planned or premeditated. However, to prove intention, premeditation is not an essential piece of evidence. An intention to kill can be formed on the spur of the moment.

23. Accused says to Police that he was 'out of mind' when he was swinging the cane knife. He further says that he had no intention to strike her with the cane knife but what came to his mind he did not know. There is no evidence of provocation or at least of him losing his self- control at the time he struck the knife for Prosecution to disprove. Accused's conduct and disposition soon after the incident do not suggest that he was remorseful. No attempt was made to take her to hospital. When Irene was in the witness box, nothing was asked from her about so called disputes, suspicions or arguments of which he had told Police.

24. Until Irene's aunty, Reena came running and held him from the back and pulled him away he had not given up his attempt. Having already struck three severe blows, Accused was aiming, as Meenal described, for the 'final strike'. If not for the timely intervention of Reena Devi, Irene could have died on the spot.

Weapon Used

25. Court can take into consideration the type of weapon used to determine the intention of the Accused in a case of this nature. Accused had used a cane knife to strike Irene. Everyone in Fiji, especially those who live in the sugar city knows what type of knife it is. Prosecution failed to tender the cane knife in evidence as an exhibit. However, Accused had identified the cane knife at the reconstruction of the scene. According to him, it is a long cane knife with a brown handle. The point of the blade had a 'sharp cut'. Both the eye witnesses said that they saw Neetin holding a thin old cane knife. Accused's mother described the knife which his son had brought around 2 p.m. on the day of the incident as an 'old knife which is used to cut grass' Dr. Samuela was of the opinion that the injuries could have been caused by a knife.
    

Injuries

26. Court can also take into consideration the number and nature of injuries and the place of the body where the injuries were inflicted to determine the intention of the Accused. According to Dr. Samuela, Irene had, on her head and face, 5 lacerations including a 10 cm. long laceration on the back of the head with an open fracture of the skull caused by a blade of a knife which was fully penetrated through the skin and into the skull. He described the multiple lacerations on both of her hands including the amputated ring finger as 'defence wounds' which would have been resulted from her trying to protect herself from the knife.

27. Expressing his professional opinion, the doctor said that severity of the injuries caused to the head and the hands indicate that those injuries were intended to cause severe devastating effect and possibility of death was evident. I observed Irene giving evidence. She had scars on her face in conformity with doctor's description of wounds.

28. Having considered all the evidence led in the trial I have no doubt that the Accused struck Irene with a cane knife several times on most vulnerable parts of her body with the intention to kill her.

29. I am unable to agree with the opinion of the Assessors that the Accused was triggered by the intention only to cause grievous harm and not by murderous intention. I reject the opinion of the Assessors.

30. I find the Accused guilty of Attempt to Commit Murder and convict the Accused accordingly. That is the judgment of the Court.

Aruna Aluthge
Judge

At Lautoka
02nd February, 2016

Solicitors: Office of the Director of Public Prosecution for State
Office of Gordon & Company for Accused