State v Singh [2022] FJHC 169; HAC 1 of 2018 (6 April 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case. No. HAC 1 of 2018

BETWEEN : THE STATE

A N D : SHALENDRA BHAN SINGH

Counsel : Mr. S. Babitu with Ms. S. Swastika for the State.

Ms. S. Ali for the Accused.

Dates of Hearing : 30, 31 March, 01, 04 April, 2022.
Closing Speeches : 05 April, 2022
Date of Judgment : 06 April, 2022

JUDGMENT

1. The Director of Public Prosecutions charged the accused by filing the following information:
   

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of offence

SHALENDRA BHAN SINGH on the 25^th day of December, 2017 at Lautoka in the Western Division murdered KUNAL KAMLESH SAMI.

2. In this trial, the prosecution called ten witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer in respect of the offence of murder as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   

ELEMENTS OF THE OFFENCE

4. To prove the above count the prosecution must prove the following elements of the offence of murder beyond reasonable doubt:
   
   • (a) The accused
   • (b) engaged in a conduct; and
   • (c) the conduct caused the death of the deceased; and
   • (d) the accused intended to cause the death; or
   • (e) was reckless as to causing the death of the deceased by his conduct. The accused is reckless with respect to causing the death of the deceased if;
   • (i) he was aware of a substantial risk that death will occur due to his conduct; and
   • (ii) having regard to the circumstances known to him, it was unjustifiable for him to take that risk.
     
5. What this court will have to consider with regard to this particular state of mind is whether the accused was aware of a substantial risk that death will occur due to his conduct and having regard to the circumstances known to him, it was unjustifiable for him to take that risk.
   
6. The first element is concerned with the identity of the person who committed the offence.
   
7. The second element relates to the conduct of the accused. To engage in a conduct is to do an act which is a voluntary act by the accused or is a result of the will of the accused.
   
8. The third element is the conduct of the accused that caused the death of the deceased. Conduct means an act done by the accused it can be anything such as punching, kicking, stomping, strangling etc. The law requires a link between the conduct of the accused and death of the deceased. This court must be sure that the conduct of the accused caused the death of the deceased.
   
9. In other words whether striking the deceased with a 2 x 1 timber, kicking and stomping him caused the death of the deceased. It is also kept in mind that the act need not be the sole cause but should substantially contribute to the death of the deceased.
   
10. With regards to the final two elements of the offence which concerns the state of mind of the accused the prosecution must prove beyond reasonable doubt either that the accused intended to cause the death of the deceased or that the accused was reckless as to causing the death of the deceased by his conduct.
    
11. The prosecution has to prove only one of the two limbs of this element. In this case the prosecution is alleging that the accused intended to cause the death of the deceased.
    
12. It is for the prosecution to prove beyond reasonable doubt that it was the accused who was engaged in a conduct and the conduct caused the death of the deceased and the accused intended to cause the death of the deceased by his conduct. A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
    
13. The prosecution says that it was the accused who had struck the deceased with a timber multiple times and also kicked and stomped the deceased when he was lying on the ground.
    
14. If this court is satisfied that the prosecution has proved all the above elements beyond reasonable doubt then this court must find the accused guilty of murder.
    
15. If on the other hand, this court finds that the prosecution has failed to prove any of these elements beyond reasonable doubt then this court must find the accused not guilty of murder.
    
16. If this court accepts that the accused did not intend to cause the death of the deceased or this court is not sure whether he intended to cause the death of the deceased then this court is to consider the offence of manslaughter which is a lesser charge than murder.
    
17. Manslaughter has the first two elements of murder, that is to say that the accused engages in a conduct which caused the death of the deceased and the accused intends that conduct will cause serious harm to the deceased.
    
18. Manslaughter is the killing of someone by unlawful conduct if this court is satisfied that the accused was engaged in a conduct which caused the death of the deceased and the accused intended that conduct will cause serious harm to the deceased then this court must find the accused guilty of manslaughter.
    
19. In this case there is evidence that the accused had struck the deceased with a 2 x 1 timber, kicked and stomped the deceased a number of times when he was on the ground.
    
20. Whether the accused intended to cause the death of the deceased by his conduct or intended to cause serious harm to the deceased by his conduct is a matter entirely for this court to decide on the basis of the facts and circumstances of the case.
    

ADMITTED FACTS

21. In this trial the prosecution and the defence have agreed to certain facts titled as final admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
22. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.

PROSECUTION CASE

EVIDENCE

23. The first witness Ranshika Rashika Kumar informed the court that before living with the deceased Kunal in a defacto relationship the witness used to stay with her mother and step-father, the accused. At first, the family was living in Delaitomuka and then they shifted to Koroipita Housing at Naikabula. The witness had a good relationship with the accused who loved and cared for her as a real father.
    
24. Kunal was their neighbour at Delaitomuka, he used to harass her but as time went by, they got together and started living as a couple from 16^th May, 2017 till 25^th December, 2017. When the witness entered into a relationship with Kunal, the accused and her mother were not in favour and they were angry with her, however, as time went by, her parents cooled down and they started to talk to the witness and Kunal.
    
25. According to the witness, they (meaning herself and Kunal) used to visit her parents meaning her mother and the accused, and everything was good and everyone was happy.
    
26. On 25^th December, 2017 upon the invitation of her parents the witness and Kunal went to her parent’s house at Koroipita. The witness was not keen to go so she hid Kunal’s salary since she was worried that Kunal will go and drink and when he is drunk he gets “punch” meaning uncontrollable.
    
27. When they arrived at Koroipita, the accused was not at home, after a while Kunal started drinking beer in the porch of the house (Kunal had taken with him 6 bottles of beer). Before midday the accused came home after doing a few chores in the house he went to have his shower.
    
28. After shower the accused went and sat under the umbrella at the table in the compound while Kunal continued drinking in the porch of the house. While drinking, Kunal insisted that the accused drink with him in the porch.
    
29. The accused did not go to Kunal, so Kunal started to swear at the accused and his voice was loud. The accused requested Kunal to stop but Kunal did not listen. According to the witness, Kunal had some drugs with him which he started taking, the accused asked him not to do that because at Koroipita no one is allowed to take drugs.
    
30. After a while Kunal slept, in the meantime the witness, her mother, the accused and her sister-in-law’s mother were talking. The accused was sitting near the door step of the house and drinking beer. Kunal woke up after 10 to 15 minutes, he was lying beside the witness and after sometime, he got hold of the witness pants and pulled her near him, he tried to grab and hug her, then he forcefully kissed her.
    
31. The mother of the witness intervened and told Kunal not to do that because it didn’t look good. The accused asked Kunal to stop, he said “you are hurting Ranshika”. According to Ranshika, Kunal’s teeth had hurt her on her lips and since he was holding her tightly she was getting suffocated.
    
32. The witness also mentioned that when Kunal woke up, his eyes were red and swollen and he was harassing her. After this, Kunal went to vomit and when he came back he sat on a chair, the witness went to charge her phone out of the house and when she returned after 5 minutes, both Kunal and the accused were talking and laughing.
    
33. However, in a short while, the talking and laughing turned into a challenge. Kunal challenged the accused to drink more, the accused accepted the challenge. As the drinking continued, Kunal said to the accused “now you can’t do anything to me because your daughter is mine”. The accused replied “yes and now she is yours so I can’t do anything because she wants to be with you”.
    
34. At this time her mother had gone to pack their food for her and Kunal to leave since Kunal’s language was not good. After this, Kunal told the accused “soon I will also take your wife with me”.
    
35. The accused got upset and used the word “bharwa, what are you saying, are you out of your mind”. Kunal got off his chair, went to where the accused was sitting, and pushed him with his right hand. The accused fell on his back half of his body was on the doorstep and the other half was in the living room. Before the accused could get up, Kunal pressed the neck of the accused and started to punch him by sitting on the chest of the accused. The accused was trying to push Kunal away.
    
36. The witness called out to her mum since she was not able to separate the two, when her mum came they were able to take Kunal outside. The accused was inside the house, when Kunal again went inside the house to fight with the accused. At this time, the accused punched Kunal, the witness again went inside the house and for the second time Kunal was taken outside.
    
37. The accused came into the compound and there was a fist fight between Kunal and the accused, the witness was there trying to separate them. One neighbour Anand came and pulled the accused whereas the witness and her mother pulled Kunal.
    
38. After this, Kunal calmed down and he went with the witness to the road, here the witness realized that she was not wearing her shoes so she told Kunal to wait for her at the roadside while she gets her shoes and bag. Kunal did not stay at the roadside but followed the witness.
    
39. The accused saw Kunal and he started yelling and saying “go away from here otherwise I will kill you”. When the witness turned around she saw Kunal going to the roadside again. When the witness went inside the house to get her things, Kunal came near the window and was peeping.
    
40. At this time, the witness heard someone saying the accused is coming by this time the accused had gone to the back of the house. Kunal tried to get hold of the baton used to open the window since the window was heavy, he could not hold the baton properly. The baton flew from his hand and landed at the door of the house on the inside. The witness saw the baton lying at the doorstep and on the way of the accused who was coming from the back of the house.
    
41. The witness heard Kunal shouting and swearing at the accused she saw the accused going out of the passage into the compound. The witness quickly started to collect her things, at this time she heard her mum yell. The witness ran outside the house, she saw some people taking the accused away and Kunal was lying on the ground.
    
42. The witness went to Kunal, lifted his head and placed it on her lap. At this time Kunal said his chest was paining, blood was coming out of his nose and mouth, since it was a hot sunny day with the help of her sister-in-law’s brother, Kunal was lifted and put under a shade. Kunal was then taken to the Lautoka Hospital.
    
43. In cross examination, the witness agreed that the accused was never violent or abusive towards her or her mother and he was protective of her. By the time the accused had come home that morning, Kunal was already drunk and he was shouting and yelling. The accused had told him to stop. The witness agreed that after Kunal had woken up he had also touched her breasts and this was done by Kunal in front of her mother and the accused.
    
44. According to the witness, Kunal was swearing at the accused since he came home, he also said “what kind of man are you?” Visitors come to your house and you are not at home” but the accused did not pay any attention or reply or do anything. When Kunal was swearing at the accused, he had used the following words in Hindi, “maichod, ghandhu, dogla, Bharwa and fucken ass”. The witness agreed the whole incident started because of Kunal and Kunal was the one who had started the fight with the accused.
45. In re-examination, the witness stated the accused had told Kunal not to yell or swear because Koroipita has rules and regulations for everyone.
    
46. The second witness Dr. Praneel Kumar informed the court that he graduated with an MBBS Degree from the Fiji School of Medicine in 2010 thereafter he completed a Post Graduate Diploma in Pathology from Fiji National University in 2013 and 2014. At the present time, he is a Forensic Pathologist employed by the Fiji Police Force.
    
47. The witness confirmed he had conducted the post mortem examination of Kunal Kamlesh Sami on 26^th December, 2017 which was marked and tendered as prosecution exhibit no. 1.
    
48. The witness had recorded the following in the post mortem examination report:
    

External Examination

1. Starting with the head, there was a 20mm x 5mm laceration on the right eyebrow area;
   
2. 8mm x 5mm brush abrasion above the right eyebrow. The witness explained an abrasion is the rubbing of the superficial skin where there is no breaking of the lower skin. Friction can cause the rubbing of the skin;
   
3. Brush abrasions were noted on the anterior part of the left pinna;
   
4. 25mm x 20mm contusion was noted below the left eyebrow. Contusion is any trauma where there is no breakage in the skin but discoloration of the skin is seen due to pressure/force applied to that part of the skin. The blood vessels break and there is bleeding inside but the skin is intact.

Internal Examination

Scalp and Skull

(a) Sub scapular hematoma was noted in the left frontal region (forehead) measuring 20mm x 20mm. This was seen after the skin covering the skull was removed underneath the skin;

(b) Sub scapular hematoma was seen in the right temporal region measuring 20mm x 20mm.

49. The witness explained the above injuries were caused by blunt force trauma which would break the blood vessels and there will be bleeding.
    

Brain

(a) Generalized cerebral oedema with widening of sulcus and flattening gyrae (swelling of the brain). This was caused by blunt force trauma to the head with a considerate amount of force.

Lungs

(a) Left lung showed multiple contusions. The first one was seen anteriorly meaning the front and back of the lungs in the left lower lobe measuring 70mm x 70mm. The other contusion was seen posteriorly (at the back) on the lower lobe measuring 70mm x 80mm.

Heart

(a) The pericardium was bulging in appearance and upon incision 300mls of blood and 300g of clot were removed. The apex of the heart shows a 10mm x 5mm rupture.

50. The witness explained the pericardium is the sack that covers the heart totally, in a normal situation, there shouldn’t be any fluid or blood at all but a bit of lubricant just to prevent the friction between the heart and the pericardium. A small incision was done, to remove 300mls of blood and 300g of clot. As a result of considerable force or trauma to the heart, the apex of the heart showed a 10mm x 5mm rupture.
    
51. According to the witness, it was possible the injuries caused could have been by the timber exhibited in court. The witness also stated that the injury seen to the heart of the deceased was a very rare one since the protective covering of the heart was filled with blood. According to the witness this was the first time he had come across such an injury. The cause of death was:
    
    • (a) Cardiac Tamponade, which meant blood was around the heart making it difficult for the heart to pump blood;
      
    • (b) Haemopericardium meaning blood in the pericardium;
      
    • (c) Ruptured heart due to blunt force trauma;
      
    • (d) Severe chest trauma;
      
    • (e) Cerebral oedema; and
      
    • (f) Blunt force trauma.
      
52. In the opinion of the witness the injury on the chest area of the deceased was the main cause of death.
    

DIRECTION ON EXPERT EVIDENCE

53. This court has heard the evidence of Dr. Kumar who had been called as an expert on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide the court with information and opinion which is within the witness expertise. It is by no means unusual for evidence of this nature to be called the post mortem examination report of the deceased is before this court and what the doctor said in his evidence as a whole is to assist this court.
    
54. An expert witness is entitled to express an opinion in respect of his or her findings. When coming to my conclusion about this aspect of the case I have borne in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert I do not have to act upon it. Indeed, this court does not have to accept even the unchallenged evidence of the doctor.
    
55. I have also kept in mind that this evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to me in reaching my decision, I must reach my decision having considered the whole of the evidence.
    
56. The third witness Anand Kumar informed the court that on 25^th December, 2017 when he went to the house of the accused, he saw the accused sitting on top of a boy and punching him. According to the witness, he had seen the accused punching the deceased head and on the side. The boy was on his stomach facing the floor the witness was about 1 ½ metres away from both.
    
57. The witness saw the accused punch this boy about 2 to 3 times he then separated the two and the boy went out of the house. The witness went home, after a short while he heard another commotion so he went outside.
    
58. He saw the accused hitting Kunal with a piece of wood on the legs, chest and shoulders, Kunal was lying down. The witness went and snatched the stick from the accused and then put it in the bulk. After this, the accused went inside his house and Kunal was taken in a van.
    
59. In cross examination, the witness stated that in the house of the accused he had seen the accused sitting on top of Kunal and punching him.
    
60. The fourth witness Ravi Kumar informed the court that he was at a Christmas Party when he came to know that the accused and Kunal were fighting. He came in a van and took Kunal to the Lautoka Hospital.
    
61. The fifth witness Alumita Ratidiva informed the court that on 25^th December, 2017 after breakfast she went to sleep at about 9.00 or 10.00 am. The witness woke up after she heard someone calling a name loudly, she went to the front of her house and heard some children screaming and the accused beating a boy with a stick. This boy was lying on the ground.
    
62. According to the witness, when the accused was hitting the boy on the chest, it sounded like someone chopping firewood. The boy on the ground was not moving or defending himself but lying motionless. The witness went towards the accused, held his hand and said “Shalendra stop it”. The witness was scared but she did go near the accused. After this the accused stepped on the chest of the boy it was a hard step the boy’s head tilted so she put her hand at the back of the boy’s head to protect his head from the gravel. According to this witness at this time she heard the boy take a long breath which she said was the last by the deceased.
    
63. The witness then took the accused to his house by holding him. The witness stated that the accused was a good neighbour. The police was informed of the incident, later they came and conducted their investigation. When the video was played in court the witness recognized herself, the accused and others present at the scene including the assaults on the deceased.
    
64. The witness confirmed her daughter Teanem Tama had recorded the incident on the mobile phone of the witness.
    
65. In cross examination, the witness agreed the accused did not have any issues with anyone in the area, he did not fight with anyone and was not violent. The witness stated the accused had gone back after the assault and then came back and stepped on the boy’s chest. The witness maintained she had touched the boy when he was lying on the ground although it was not in the video.
    
66. The sixth witness Teanem Tama informed the court that on 25^th December, 2017 she was recording her siblings outside her house in the mobile phone of her mother when all of a sudden the incident started happening. The videos (in one CD) was marked and tendered as prosecution exhibit no. 2.
    
67. The seventh witness Karun Kamlesh Sami and the eighth witness Khatoon Bi informed the court that on 25^th December, 2017 they had identified the body of the deceased at the Lautoka Hospital.
    
68. The ninth witness Sergeant 3049 Josateki Seuseu informed the court that on 25^th December, 2017 he was instructed to visit the crime scene at Koroipita Settlement. At the crime scene the witness was instructed to be the photographer. As per protocol there was a briefing about the sequence of events likely to have taken place and then photos were taken according to the sequence identified. The witness had also taken photos of the scene reconstruction and the post mortem which was in the photographic booklet he had compiled.
    
69. The photographic booklet dated 29^th December, 2017 was marked and tendered as prosecution exhibit no. 3. The witness when showed MFI (2) was able to confirm that the piece of timber he had photographed is the same timber he had uplifted that day. He had signed on the timber which was allegedly used to assault the deceased. The 2 x 1 pine timber was marked and tendered as prosecution exhibit no. 4.
    
70. The final witness Mahesh Chand informed the court that he was the investigating officer in this case. On 25^th December, 2017 in the afternoon information was received that there was a fight in progress at Koroipita. A team was formed to attend to the report. At the crime scene, one Anand told the police team about the whereabouts of the timber used by the accused to assault the deceased.
    
71. The timber was secured and guarded by a police officer. The accused was arrested after he was informed of his rights, during investigations it was revealed that the incident had been video recorded. The phone of one Alumita was taken in possession.
    
72. The Samsung J2 phone was marked and tendered as prosecution exhibit no. 5. When the witness was shown prosecution exhibit no. 4, the timber uplifted as part of the investigation, the witness confirmed the same. The witness also confirmed that he had watched the videos stored in the mobile phone which were played in court. The witness confirmed the contents to be the same he had seen in the mobile phone.
    
73. In cross examination, the witness stated the wood that was uplifted was the same one used by the accused to assault the deceased because during the caution interview the accused had identified the same wood he had used that day and he had signed on the wood as well.
    

74. This was the prosecution case.

DEFENCE CASE

75. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination. This court must also consider his evidence and give such weight as is appropriate.
    
76. The accused informed the court that on 25^th December, 2017, he had gone in the morning to slaughter a goat with his cousin in Tomuka. When he reached home at about 11.45 am, he saw Ranshika and Kunal at home with their neighbours Farnaz and Farnaz’s mother. Kunal and Ranshika his step daughter were living as a couple. At home the accused cleaned the fish and attended to other chores.
    
77. By this time, the deceased was so drunk that he could not walk properly, he even took off his clothes anywhere and urinated in full view of the accused young son. The accused went to sit outside his house under the umbrella at the table and drank a bottle of beer. Kunal and his other family members were in the passage. As the drinking continued, Kunal was shouting so he signalled to his wife to tell Kunal to be quiet and also other people are not allowed in the area without the approval of the line leader.
    
78. When the accused went inside the house, Kunal challenged the accused to drink with him. It was at this time he started to drink with Kunal. The accused gave Kunal a glass of beer then he had one then gave Kunal another one. Kunal could not drink so he gave it to Ranshika after this, Kunal started rolling marijuana and he forced the accused to smoke but the accused did not, in fact he scolded Kunal and told him not to smoke since his son was around breathing the smoke. The accused told Kunal to get up and “fuck off”.
    
79. Kunal then extinguished the marijuana smoke and put it beside the packet of matches and then he started to swear at the accused saying in Hindi, ghandu, maichod, dogla and bharwa and also said, “I took your daughter, you couldn’t do anything, now I am going to take your wife also”.
    
80. Upon hearing this, the accused felt bad he was sitting on the steps at the door while Kunal sat on the chair. After a while, Kunal stood up and went to where Ranshika was standing at the kitchen door.
    
81. Kunal grabbed Ranshika, kissed her and put his hands inside her pants. The accused went and separated the two because his young son was watching what Kunal was doing. At this time, Kunal grabbed the neck of the accused and pushed him. The accused also pushed Kunal then went to sit at the door steps, suddenly a punch landed near his eyes, he fell inside the house. Kunal then jumped on his chest and again grabbed his neck. Ranshika came and pulled Kunal away when Kunal’s hand loosened from his neck, the accused pushed Kunal with his hands and legs.
    
82. When the accused got up, Kunal was outside the house, the accused also went outside. When he did not see Kunal anywhere he told Ranshika to go and pack their food and for them to go home. The accused was inside the house when he heard the words “coming”, “coming”. The accused went closer to the door and he saw Kunal standing on the road shouting and swearing saying, “Labasia, I am going to kill you.”
    
83. The accused then took the stick and chased Kunal away. By doing this, the accused thought Kunal will get scared and run away. Kunal ran away so the accused came back into his compound. From the compound, the accused again saw Kunal coming he thought since Kunal was so drunk, he might come and do something to his wife and children.
    
84. At this time the accused said, he just lost control of himself since Kunal had assaulted and injured him and even after chasing him, he kept coming back. When the video was played in court, the accused said he reacted in the manner shown in the video including the swearing in the Itaukei language because Kunal was hassling him for a while.
    
85. According to the accused, he was not expecting to hit Kunal so hard, he just wanted to injure him. The accused admitted saying, I will kill Kunal because it was recurring in his mind about the many things Kunal had said to him that day. The accused said he did not intend to kill Kunal by his actions.
    
86. In cross examination, the accused stated that Kunal had sworn at him and he had also sworn at Kunal. The accused accepted that he did not tell the line leader Alumita about the misbehaviour of Kunal such as Kunal’s swearing, drinking and smoking of marijuana inside his house and he also did not call the police at the time. When it was put to the accused that in the house it was him on top of the deceased and punching him, the accused said it was a lie. The injury the accused had received on his neck was because of what Kunal had done to him and that Anand was not there.
    
87. When it was suggested to the accused that in the video, Kunal did not respond or say anything to him, the accused said Kunal was talking but it could not be heard in the video. The accused said he had the stick in his hand to scare Kunal and chase him away. He agreed Kunal was unarmed, but he had not aimed to hit the deceased on his head since Kunal ducked the stick had hit his head. The accused agreed that at the scene, he had lost his self-control.
    
88. The accused agreed hitting the deceased with a stick, kicking him on his face and head, but said it was a lie that he had stepped on the chest of Kunal when he was lying on the ground. The accused denied he was in complete control of what he was doing.
    
89. The accused maintained although he had used the words, “I will kill you”, he had no intention to kill Kunal. The accused agreed that when he was assaulting the deceased who was lying on the ground, Alumita had said “he is about to die” yet he continued assaulting the deceased.
    
90. The accused accepted the contents of the videos played in court he stated that he had lost control of himself but had not intended to kill Kunal. When it was suggested to the accused that just because the deceased had called him “ghandu” that is why he killed Kunal, the accused denied this, saying the deceased had been swearing at him from the beginning, and there were lots of things that had happened with her daughter, and his young child was watching what the deceased was doing accumulated to what happened that day.
    
91. In re-examination, the accused stated that he did not inform Alumita the line leader about anything because she was watching what was happening. In respect of not calling the police when Kunal was swearing at him, the accused stated that he did not know that this incident was going to end like this.
    
92. This was the defence case.
    

ANALYSIS

93. The prosecution alleges that in the afternoon of 25^th December, 2017 at Koroipita Housing, the accused after a fist fight with the deceased later struck him with a 2 x 1 timber several times on his head, face and body and then kicked him on his face and stomped him on his chest which resulted in his death almost instantly.
    
94. The prosecution also states that the accused had on three occasions said that he will kill the deceased which showed that the accused had made up his mind to kill the deceased that day. The video played in court showed the aggression by the accused and his actions that followed on an unarmed deceased. The accused on the totality of what he did displayed terror and death which only points to his intention to kill the deceased and nothing else.
    
95. The prosecution is asking this court to consider the two videos including the substantial use of force (as seen in the video and mentioned by the doctor) when the accused used the timber on the deceased. The prosecution also states that it is important to note that the accused had initially directed the timber at the back of the deceased head, then his body after the deceased had fallen and not only this, the accused had kicked and stomped the deceased a few times when he was lying on the ground.

96. The post mortem report is self-explanatory and the evidence of the pathologist is before the court which speaks of a brutal assault on the deceased. Finally, the prosecution submits that the defence of provocation is not available to the accused in the circumstances of this case. This court must look at whether the accused had indeed lost his self-control and the retaliation by the accused on the deceased. It is an element of the law on provocation that the retaliation by the accused must be proportionate to the provocation. For this, the prosecution says the videos played in court are glaringly obvious including the evidence of Dr. Kumar that the force used on the deceased was disproportionate and excessive.
    

97. On the other hand, defence says this court should consider the fact that it was the deceased who had provoked the accused from the time the accused came to his house on this day. The deceased was the initial aggressor and had started to provoke the accused by swearing at him on several occasions inside his house.

98. The deceased was drunk and his swears in Hindi were directed against the accused mother and his sexuality which was the very trigger that affected the accused as a person amongst other swears. The deceased swore at the accused in front of his wife, step daughter and other family members including his young son. The accused was very much hurt and insulted as a result. To insult the accused further the deceased had also said that one day he will take the wife of the accused with him like he has done to his daughter. The other thing the deceased did after his short sleep was he had started to abuse Ranshika by touching her breast and private part in front of everyone in the house.
    
99. The defence is asking this court to look at all the acts of the deceased cumulatively and not in isolation. The swears, comments and/or remarks of the deceased including his initial assault on the accused were enough to get any ordinary person to lose his self-control. The accused as per the evidence was very tolerant and he did not react until the deceased went too far compelling the accused to lose his self -control.
    
100. The defence further says that the actions of the deceased and his constant vulgarity and his act of touching the breast and private part of his step daughter and the subsequent comment that one day he will take the accused wife with him got the accused to react in the way anyone in place of the accused would have.
     
101. The deceased was at all times insulting the accused that the accused did not have any time to “cool off”, the sequence of events is continuous and the deceased was relentlessly picking on the accused. The final provocation by the deceased was when the deceased again came into the compound of the accused and started to swear at him. It was the deceased who had wanted to take hold of the timber which was used to open the window but unfortunately for him that timber came on the way of the accused when he was coming from the back of the house.
     
102. The accused at that point in time was unable to control himself he was so overwhelmed with what the deceased had been doing that he acted in the way he did. The videos played in court also shows that he is affected by what the deceased had said to him and he repeated the swear of the deceased in the video.
     
103. The defence is also asking this court to consider that from the time the accused came to his house around midday the deceased actions towards the accused gradually took a toll on him.
     
104. The defence is asking this court to take into consideration the sequence of events that had taken place and the manner in which the deceased had acted towards the accused. The provocation was extreme and objectively anyone would have lost his or her self-control. The accused was observing and enduring what the deceased was saying and doing.
     
105. Finally, the defence submits that the accused did not intend to kill the deceased, he only wanted to scare the deceased so that he goes away since a father will never want to see his daughter become a widow.
     

DETERMINATION

106. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt. In this case the prosecution also has to disprove provocation beyond reasonable doubt.
     
107. There is no dispute that what was supposed to be a family Christmas celebration had turned into a tragedy. The accused had assaulted the deceased that afternoon with a 2 x 1 timber multiple times and then also stomped and kicked him a few times that eventually led to the death of the deceased. The doctor on duty had certified that the deceased was dead on arrival.
     
108. The post mortem report of the deceased is self-explanatory in respect of the serious injuries suffered by the deceased resulting in his death. The issue in this case is whether the accused had intended to kill the deceased that afternoon or whether the accused was provoked by the deceased which led to the actions of the accused resulting in the death of the deceased.
     
109. For this court to come to a decision it is important to consider all the evidence holistically. The evidence of Ranshika the defacto partner of the deceased is crucial in respect of what happened inside the house of the accused. I found this witness to be honest who narrated the events that took place inside the house clearly. I have no doubt in my mind that she told the truth in court.
     
110. I have given careful consideration to what this witness told the court. The sequence of events that led to the actual assault by the accused on the deceased cannot be considered in isolation. The following excerpts of Ranshika’s evidence are worthy of mention here:
     

Situation one

111. While drinking, Kunal insisted that the accused company him to drink in the porch. The accused did not go to Kunal so he started to swear at the accused and his voice was loud, the accused requested Kunal to stop but Kunal did not listen. According to the witness, Kunal had some drugs with him which he started taking, the accused asked him not to do that because at Koroipita, the rule is that no one is allowed to take drugs in that area.
     

Situation two

112. This is after the deceased woke up:
     

...he got hold of the witness pants and pulled her near him, and he tried to grab and hug her. Kunal then kissed her forcefully. The mother of the witness intervened and told Kunal not to do that because it didn’t look good. The accused asked Kunal to stop, he said “you are hurting Ranshika” because Kunal’s teeth hurt her on her lips and since he was holding her tightly she was getting suffocated.

113. In cross examination Ranshika agreed the deceased had also touched her breast and the accused said in his evidence that the deceased had put his hands inside Ranshika’s pants.
     

Situation three

Kunal challenged the accused to drink more, the accused accepted the challenged. As the drinking continued, Kunal said to the accused “now you can’t do anything to me because your daughter is mine”. The accused replied “yes and now she is yours so I can’t do anything because she wants to be with you”.

...After this, Kunal told the accused “soon I will also take your wife with me”.

The accused got upset and used the word “bharwa, what are you saying, are you out of your mind”. Kunal got off his chair, went to where the accused was sitting, pushed him with his right hand. The accused fell on his back half of his body was on the doorstep and the other half was in the living room. Before the accused could get up, Kunal pressed the neck of the accused and started to punch him by sitting on the chest of the accused. The accused was trying to push Kunal away.

Final situation

114. The witness heard Kunal shouting and swearing at the accused since she had seen the accused going out of the passage into the compound. The witness quickly started to collect her things, at this time she heard her mum yell.
     
115. Furthermore, Ranshika told the court about the vulgar swears of the deceased to the accused in Hindi such as Maichod meaning mother fucker, dogla meaning bastard, bharwa meaning pimp or procurer and ghandhu meaning gay.
     
116. I accept that Anand Kumar had gone into the house of the accused and seen the accused on top of the deceased punching the deceased. This supports what Ranshika told the court that after the deceased had attacked the accused after waking up the deceased had for the second time gone into the house and it was during this time the accused had punched the deceased.
     

LAW ON PROVOCATION

117. In Puratake Tapoge v State [2017] FJCA 140; AAU121.2013 (30 November 2017) the Court of Appeal had succinctly stated the law on provocation and the test that needed to be satisfied from paragraphs 15 to 20 as follows:

[15] Provocation is not a complete defence to an unlawful killing. It is a partial defence. Killing with provocation reduces culpability from murder to manslaughter. This lesser culpability is the effect of section 242 of the Crimes Act 2009, which states:

(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in sub-section (2), and before there is time for the passion to cool, he or she is guilty of manslaughter only.

(2) The term “provocation” means (except as stated in this definition

to the contrary) any wrongful act or insult of such a nature as to be likely when –

a) done to an ordinary person; or

b) done in the presence of an ordinary person to another person –

(i) who is under his or her immediate care; or

(ii) who is the husband, wife, parent, brother or sister, or child of the ordinary person-

to deprive him or her of the power of self-control and to induce him or her to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.

(3) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as state in sub-section (2), the former is said to give to the latter provocation for an assault.

(4) An act which a person does in consequence of incitement given by another person in order to induce him or her to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.

(5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who believes and has reasonable grounds for believing the arrest to be unlawful.

[16] There is a general duty on the courts to consider a defence, even if it was not expressly relied upon by the accused at trial. The scope of that duty in relation to provocation was explained by Lord Devlin in Lee Chun Chuen v R (1963) AC 220 as follows:

Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements.

[17] In Praneel Kumar v Reginam Cr. App. No 25 of 1972, this Court said:

...it is well established law that a trial Judge is under no obligation to leave the issue of provocation to the Jury – in this case Assessors – where there is no evidence of facts upon which a finding of provocation could properly be based.

[18] Similarly in Maha Narayan v Regina Criminal Appeal No. 1 of 1972, this Court said that the issue of provocation should be left to the assessors only if there is a credible narrative of events suggesting the presence of the three elements referred to in Lee Chun Chuen v R (1963) AC 220 namely, the act of provocation, the loss of self control, both actual and reasonable, and the retaliation proportionate to the provocation.

[19] More recently, in Isoa Codrokadroka v The State unreported Cr App No. CAV of 2013; 20 November 2013, the Supreme Court endorsed the judicial approach to provocation that was formulated by this Court at [16]:

The Court of Appeal summarised at paragraph 38 the judicial approach that should be taken in relation to provocation as follows:

"1. The judge should ask himself/herself whether provocation should be left to the assessors on the most favourable view of the defence case.

2. There should be a credible narrative on the evidence of provocation words or deeds of the deceased to the accused or to someone with whom he/she has a fraternal (or customary) relationship.

3. There should be credible narrative of a resulting loss of self-control by the accused.

4. There should be a credible narrative of an attack on the deceased by the accused which is proportionate to the provocative words or deeds.

5. The source of the provocation can be one incident or several. To what extent a past history of abuse and provocation is relevant to explain a sudden loss of self-control depends on the facts of each case. However accumulative provocation is in principle relevant and admissible.

6. There must be an evidential link between the provocation offered and the assault inflicted."

[20] ... As the Supreme Court in Praveen Ram v The State unreported Cr App CAV001 of 2011; 9 May 2012, said at [45]:

In the absence of some evidence of the attendant circumstances that led to the argument and the provocative incident, in particular, the nature of the provocation, its intensity and duration, one cannot assume that the act of provocation or insult resulted in the loss of self-control by the Petitioner and that his reaction to it was proportionate.

118. The accused relies on the defence of provocation. Provocation is not a complete defence but is a partial defence reducing what would otherwise be murder to the lesser offence of manslaughter. Since the prosecution must prove the accused's guilt, it is for the prosecution to make sure that this was not a case of provocation and not for the accused to establish that it was.
     
119. This means before this court can find the accused guilty of murder the prosecution must satisfy tourt beyond reasonable doub doubt that the accused was not ‘provoked’ to do what he did. ‘Provocation’ has a special meaning in this context. If the prosecution satisfies this court beyond reasonable doubt that the accused was not provoked to do what he did, then the accused will be guilty of murder. If, on the other hand, this court considers either that he was, or may have been, provoked, then the accused will be not guilty of murder, but guilty of the less offence of manslaughter. It is not for the accused to prove that he was provoked, but it is for the prosecution to prove beyond reasonable doubt that he was not provoked.
     
120. How then does this court decide whether the accused was, or may have been, provoked to do what he did? There are a number of questions this court has to consider when deciding whether the accused was, or may have been, provoked to kill the deceased.
     
121. The first question has two parts to it. The first is did the deceased’s conduct, that is the things he did or said, or both, provoke the accused, or may have provoked him? If they did, or may have done, then this court must consider the second issue, which is did the provocation cause the accused to suddenly and temporarily lose his self-control?
     
122. When considering whether the accused was provoked this court must take the accused as this court finds him. For example, if the accused was disabled in some way, to call him a cripple might be very much more hurtful than it would be to someone who is not disabled.
     
123. This court will also note that it is necessary that the accused must have been provoked to “suddenly and temporarily” lose his self-control. That is because the law only permits the defence of provocation where the accused is for the moment not the master of his mind. If he had time to think about what has provoked him, to reflect on how he is going to react, and to decide how he is going to react, then the essential element of the defence of provocation of a sudden and temporary loss of self-control does not exist.
     
124. When considering whether the accused’s loss of self-control was sudden and temporary this court must consider the length of time which had passed since the actions or words of the deceased that are relied upon as provocation took place, and whether the accused had in fact regained his self-control before he killed the deceased. Finally, the force used by the accused must be proportionate to the provocation.
     
125. If this court is satisfied beyond reasonable doubt that the accused was not provoked, or if he was, or may have been provoked, that he had regained his self-control before he killed the deceased, and the retaliation was disproportionate to the provocation then the accused cannot rely on provocation to reduce his crime to manslaughter, and this court should find him guilty of murder, and that is the end of the matter.
     
126. If, however, this court accepts that the accused was, or may have been provoked, and that his loss of self-control was, or may have been, sudden and temporary, then this court must go on to consider a further question, which is whether everything done and said by the deceased was, or may have been enough to make a reasonable person do what the accused did?
     
127. A “reasonable person” in this context means an ordinary person of the accused age and sex who is not exceptionally excitable or aggressive, but is possessed of such powers of self-control that everyone is entitled to expect that people will exercise in community as it is today. In other words a reasonable person is a person of ordinary self-control.
     
128. This court should bear in mind that community requires ordinary people to exercise reasonable control over their emotions and their tempers. It is for this court to consider what control over emotions and tempers is to be expected today of people of ordinary self-control.
     
129. If this court is satisfied beyond reasonable doubt that the provocation was not enough to make a reasonable person do what the accused did, then this court should find the accused guilty of murder.
     
130. On the other hand, if this court considers that the provocation was, or may have been, enough to cause a reasonable person to do what the accused did, than this court should find the accused not guilty of murder, but guilty of manslaughter.
     
131. I do not accept that the accused told the complete truth in court when he said he did not intend to kill the deceased that day. I also do not accept that the accused had only wanted to scare the deceased with the timber he had taken from his house and had walked across several metres to the public road where the deceased was.
132. The accused in his evidence and in the video played in court had put emphasis that he was not a “ghandu” since he had children. This shows that there was nothing about the word “ghandu” that would have made the accused lose his self-control.
     
133. Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation.
     
134. In this case the accused had used excessive force on the unarmed deceased which was evident from the video played in court and the evidence of Dr. Kumar which I accept. I also do not accept the deceased had said something to the accused before he had assaulted the deceased. The video is clear on this. Furthermore, I also do not accept that the accused in video two was tapping to wake up the deceased with a view to taking him to his house as unworthy of belief. The video shows the accused was swearing at the deceased and basically assaulting him indiscreetly.
     
135. After considering all the evidence adduced, this court is satisfied beyond reasonable doubt that the accused had intended to kill the deceased by his conduct. Although the deceased swears, remarks/comments and subsequent assault on the accused may have been provocative in nature but not to the extent that the accused had lost his self-control.
     
136. What the accused did that on 25^th December, 2017 was not out of loss of self-control. The accused did what he had set out to do with the timber in his hand. By this time the deceased had already left the accused compound and there was lapse of time which in my view was sufficient for the accused to cool down. From the video the accused had assaulted the deceased with the timber by walking many metres away from his house onto the public road where the deceased was. The deceased was nowhere near the house of the accused or his compound when he was assaulted by the accused with the timber.
     
137. On the totality of the evidence and the sequence of events that unfolded the accused had the opportunity to rethink or get his senses back. There was no need for the accused to take the timber with him and confront the deceased at all.
     
138. In my judgment the initial aggression of the deceased on the accused and his continuous act of swearing and assault would not have caused an ordinary person to react the way the accused did. The act of sexual advance on Ranshika cannot be taken as a provocative act because according to Ranshika after the deceased had forcefully touched her breast the accused and the deceased were talking to each other and laughing so there was no reason for the accused to lose his self-control by this act of the deceased.
     
139. The accused took the 2 x 1 timber from his house, walked over a good distance to where the deceased was standing at the public roadside and struck him with such a force that the deceased collapsed immediately. As if this was not enough the accused continued striking the deceased with the timber after the deceased had fallen and shortly after kicked the face and stomped the chest of the deceased. I accept the evidence of Alumita that when the accused was hitting the deceased it sounded like someone chopping firewood. I even heard this sound when the video was played.
     
140. When people came to the accused to calm him down and stop him the accused continued to show his aggression by kicking the deceased. This court accepts that the accused was not provoked by the deceased. On the evidence before this court it is difficult to accept that the accused had lost his self-control, and how the retaliation by the accused was proportionate to the provocation. Furthermore, everything done and said by the deceased in my view was not enough to make a reasonable person do what the accused did? The distance where the accused house was and where the actual assault took place is a sizeable distance and the substantial force used on the deceased is a crucial factor to be taken into consideration in this regard as well.
     
141. The prosecution has proven beyond reasonable doubt that the accused was not provoked by the deceased. Moreover, the accused in his evidence stated that when he went with the stick towards the deceased he thought the deceased would harm his wife and daughter is not worthy of belief. I have also directed my mind to self-defence as per the evidence of the accused as well and would like to mention that this defence is not available to the accused on the evidence before this court.
     

CONCLUSION

142. Upon considering the evidence adduced by the prosecution and the defence this court is satisfied beyond reasonable doubt that the accused on 25^th December, 2017 had murdered Kunal Kamlesh Sami.
     
143. For the above reasons, the accused is found guilty for one count of murder as charged and he is convicted accordingly.
     

144. This is the judgment of the court.

Sunil Sharma
Judge

At Lautoka
06 April, 2022
Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.