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State v Isoof - Judgment [2022] FJHC 22; HAC161.2019 (19 January 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 161 of 2019

STATE

vs.

MUHAMMAD RAHEESH ISOOF

Counsel: Mr. S. Babitu with Mr. Tuenuku and Ms. Lata for the State
Mr. I. Khan for the Accused

Date of Voir Dire Hearing: 23^rd December 2021
Date of Hearing: 15^th December 2021 – 17^th December 2021,
20^th December 2021,

22^nd December 2021 – 24^th December 2021,

29^th December 2021 – 30^th December 2021,

3^rd January 2022 – 4^th January 2022,

6^th January 2022 – 7^th January 2022
Date of Judgment: 19^th January 2022

JUDGMENT

Introduction

The Accused has been charged with five counts of murder, contrary to Section 237 of the Crimes Act and one count of Attempted Murder, contrary to Section 44 and 237 of the Crimes Act. The particulars of the offences are that;

FIRST COUNT

Statement of Offence

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

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division murdered NIRMAL KUMAR.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division murdered USHA DEVI.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division murdered NILESHNI KAJAL.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division murdered SANAH SINGH.

FIFTH COUNT

Statement of Offence

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

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division murdered SAMARAH SINGH.

SIXTH COUNT

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44 and 237 of the Crimes Act 2009.

Particulars of Offence

MUHAMMAD RAHEESH ISOOF on the 25^th day of August 2019 at Nadi in the Western Division attempted to murdered SAMAIRA KUMAR.

Consequent to the plea of not guilty entered by the Accused, the matter then proceeded to the hearing. The hearing commenced on the 15th of December 2021 and concluded on the 7th of January 2022. The Prosecution presented fifty-five witnesses and tendered 65 items as exhibits to establish the prosecution case. The Accused and another witness gave evidence for the defence and tendered seven documents as the defence exhibits. Subsequently, the Prosecution and the Defence were directed to file their respective written submissions, which they filed as per the directions. Having carefully perused the evidence presented during the hearing and the respective written submissions of the parties, I now proceed to pronounce the judgment as follows.

Tin elements of the offence of Murder are that;
1. The Accused
2. Engaged in a conduct,
3. With the intention of causing the death of the deceased, or
4. Was reckless as to causing the death of the deceased,
5. That conduct caused the death of the deceased,
The main elements of the offence of Attempted Murder are that;
1. The Accused;
2. Engaged in a conduct, which was more than merely preparatory;
3. With the intention to cause the death of Samaira Kumar, or
4. With the knowledge or believe that his conduct would cause the death of Samaira Kumar.

The Prosecution Case,

The dead bodies of Mr Nirmal Kumar, Ms Usha Devi, Ms Nileshni Kajal, Ms Sanah Singh and Ms Samarah Singh were found on top of a cliff at a very remote and isolated location in Nausori Highland. Mr Setareki Nagala found the bodies on the morning of the 26th of August 2019. Moreover, Mr Nagala had found baby Samaira Kumar as well. She was alive and crawling around her grandmother’s, Usha Devi’s dead body. Once the matter was reported, the Police had launched an investigation. The victims’ identities and the place of their residence were confirmed. The Crime Scene Investigators had conducted the crime scene investigation at the scene of the crime and later at the homes of the suspect and the deceased.
Doctor James Kalougivaki conducted the post-mortem of the dead bodies on the 29th of August 2019. According to the Post-Mortem Reports, the cause of death was fatal acute pesticide poisoning. The Crime Scene Investigators had found one empty bottle, one bottle containing clear liquid, a red colour "Black & Gold 21 Tomato Sauce" bottle containing orange liquid and a Tomato Paste bottle containing salt-like substance around the vicinity of the dead bodies. Those items were tested positive for the pesticide residual test. Moreover, it was found that the salt like white substance contained chlorophenol. In addition to that, the Crime Scene Investigators found certain ritual items at the bottom of the cliff where the dead bodies were found. It was confirmed that five of those ritual items had the presence of the accused's DNA. The chain of custody and integrity of those items recovered from the crime scene was not disputed by the defence under Section 135 of the Criminal Procedure Act.
The Prosecution and the Defence tendered the admitted facts pursuant to Section 135 of the Crl Procedure Act. The Prosecution and the Defence then filedfiled another set of admitted facts as Further Amended Admitted Facts.
The Prosecution presented the evidence to establish clusters of incidents, acts, and state of mind and affairs through fifty-five prosecution witnesses and 65 exhibits, which could be categorised into the following main groups, that;
1. Incidents prior to the events of the 25th of August 2019,
2. Incidents that happenappened on the 25th of August 2019,
3. Incident that took place after the bodies were found on the 26th of August 2019,
4. The Police Investigation,
The Prosecution presented evidence to establish the following incidents, which come under the incidents before the events of the 25th of August 2019, they are that;
1. Exchange of three telephone calls between Nirmal and the accused while Nirmal was at the B.S.P. Bank,
2. Usha Devi's visit to the Jewellery Shop in Nadi with her aughters and three granddaughters,
3. The visit of the Accused to the Gounder Hardware Store, inquiring about the pesticide “lannate”,
4. The preparation for the prayer ceremony and the birthday celebration at N's house,
5. The telephone conversation between Sangeetha Devi and Usha Devi on the night of 24th of August 2019,
6. Voice recording found in the Nirmal's mobile phone,
The evidenvidence of the following incidents fall under the second category as stateve,
1. The telephone conversation between Sangeetha Devi and Kajal Nileshni on the morning of 25th of August 2019,
2. Viber call and messages exchanged between Mr Kupsamy and Kajal Nileshni on the 25th of August 20160;
3. Mr Semeli Ratu's evidence about the movements of the Accused on the 25th of August 2019,
4. The CCTV footages of New World Supermarket, Satya's Shopping Centre, AI. Apartments, Shop & Save Supermarket Namaka, and ure Pharmacy,
6. The photos found in Nirmal's mobile phone,

The Prosecution presented the following evidence in relation to the incidents that took place after the incident on the 25th of August 2019,

Mr Parveen Singh's evidence about his conversation with the Accused in the evening of the 26th of August 2019,
Ms Sera Tokalau's evidence about the incidents that took place on the 25th and 26th of August 2019, ially her conversations with Sangeetha Devi and the Accusedcused on the 26th of August 2019,
Evidence of Mr Mohammed Sofeed, who found the mobile phone of Nirmal in the accused's car,
Evidence of Mr Shalendra Reddy, explaining the Accused's reaction to the finding of Nirmal's mobile phones in his car and the news of the five dead bodies,
Visits of the Police to the Deceased's house,
Accused's explanation to the finding of Nirmal's phone in his car,
A8' >Accused had called Sgt Semi Vuniwai informing him that they found Nirmal's mobile phone in his car,&#1li>

The following police officers gave evidence explaining the investigation they had carried out regarding this matter,

IP Jitoko, Sgt Edward Bibi, and Sgt Josateki Seuseu explained the investon they carried out at the crime scene, house of the deceaseceased, the house of the accused and also during the post-mortem of the five victims,

Doctor James Kalougivaki gave evidence explaining the post-mortem examination of the five deceased,

D.I.P. Vikash Prasad explained the search he conducted at the accused's house,

Mr >Mr Savenaca Siwatibau explained the extraction reports he made in respecmobiles phones found during the investigation,

Mr Tevita Nasova presented the 3D version of the video of the location of the crime scene,

Ms Naomi Tuitoga tendered the D.N.A. Analysis report she made in respect of theA. profiling test she carried out comparing the D.N.A. found in certain evidence items with with the samples of the D.N.A. of the five deceased and the Accused,

Ms Miliana Werebaunoma, the Principle Scientific Officer of the Fiji Police Force, explained the toxicology analysis she carried out for certaems found at the crime scen scene and specific body samples of the five deceased persons.

tyle='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='8' >Sgt Anil Kumar's evidence regarding the overall investigation carried out by the diff police teams,

According to the evidence presented by the Prosecution, there is no direct evidence to establish what had actually happened at Nausori Highlands. There is no direct evidence to establish or point out what the Accused had done at Nausori Highlands to cause the death of those five deceased by poisoning. Moreover, there is no direct evidence to establish how and who administered the poison to the five deceased. Furthermore, there is no direct evidence to establish the identity of the pesticide found in the bodies of the five individuals.

Circumstantiaantial Evidence

The Prosecution case against the accused entirely depends on the circumstantial evidence. Hence, I shall briefly draw my attention to discuss the legal definition of circumstantial evidence. The Prosecution relies upon evidence of various incidents, acts, state of mind, affairs, and circumstances related to this incident and the accused. The Prosecution says, when taken together, will lead to a certain, indisputable, and undeniable conclusion that the accused has committed this crime.
Keith JA in Naicker v State [2018] FJSC 24; CAV0019.2018 (1 November 2018) has explained the nature of circumstantial evidence and its evidential effects, where his lordship held that;

<220;It is soms sometimes said that circumstantial evidence is lempelling than direct eect evidence. What better evidence can there be than that someone saw the defendant commit the crime accuf? But eye witnesitnesses can sometimes be mistaken, and they have also been known to lie. lie. That is why it is also said that circumstantial evidence can be as compelling, if noif not more so. If I go to bed at night and the ground outside is dry, and I wake up in the morning to find that it is wet – true, I have not actually seen it rain, but the inference that it rained during the night is irresistible. As long ago as 1866, 8 years before Fiji became a Crown Colony, a distinguished judge likened circumstantial evidence to a rope comprised of several chords. He said that “one strand of the chord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.” One of the issues in this case is whether the circumstantial evidence was sufficient to justify ohe conviction of the petitioner for murder.

Having outline the nature of the circumstantialence, Keith JA further expl explained that

“The essence of it is that the prosecution is relying on different pieces of evidence, none of which on their point directly to the defendant’s guilt, but when taken together leave no doubt about the defendant’s guilt because there is no reasonable explanation for them other than the defendant’s guilt”

Accordingly, the Court must satisfy the primary circumstances on which the inference of guilty are to be drawn are proven beyond reasonable doubt. Then the inference of guilt must be the only inference that is reasonably open. The inference must be the only and certain rational inference of the Accused's guilt. If the evidence that is accepted or considered as reliable suggest some other probable inferences or conclusions, which show the innocence of the Accused or creates a doubt as to the guilt of the Accused, the court should not draw any inference or form any conclusion of guilt of the Accused.
The Supreme Court of India in Navaneethakrishnan vs The State By Inspector Of Police (CRIMINAL APPEAL NO. 1134 OF 2013) has explained the importance of distinguishing the conjecture or suspicion with the legal proof. It further discussed the importance of establishing each and every link of the chain of circumstance. The Indian Supreme Court held that;

<220;The law ilaw is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions” (underline is mine)

Cross on Evidence has classified three categories of circumstantial evidence. They are Prospectant Evidence, Concomitant Evidence and Retrospectant Evidence. The prospectant evidence includes the evidence of the events, acts, state of mind or affairs in the past that could justify an inference that the act was done, or state of mind or affairs existed, relating to the disputed matter or incident before the court. The evidence of circumstances that existed contemporaneously with the alleged transaction come under the concomitant evidence. The retrospectant evidence means the evidence of any act, state of mind or affairs that took place after the alleged transaction that justify an inference that the alleged act was done or state of mind or affairs existed. (vide: Cross on Evidence 10th Ed pg17).

<Corpus Dels Delicti

Every criminal prosecution contains two main components. The first is the "corpus deli delicti", which means a crime has been committed. Accordingly, the Prosecution has to first establish beyond reasonable doubt that this was a crime of murdering five individuals by poisoning. The second component is the identity of the criminal. Once the "corpus delicti" is established, the Prosecution is then required to prove that the accused had committed this crime.
According to the evidence of Sangeetha Devi, her father Nirmal was a loving and caring father who loved his granddaughters a lot. He was happily and proudly looking forward to celebrating the birthdays of his two granddaughters, Samaira Kumar and Samarah Singh, on the 31st of August 2019. Evidence of Bijma Wati, Daya Ram, Parveen Singh and Sangeetha Devi established that Nirmal was getting ready for a prayer ceremony scheduled to be held on the 27th of August 2019 at his residence, then the birthday celebration of the two granddaughters. According to Sangeetha Devi, Nirmal had been an excellent husband to her mother.
If the Nirmal's family had committed mass suicide, killing themselves by taking pesti indeed they would not have left the little toddler alive aive at that extremely isolated and dangerous terrain in the Highlands, exposing her to possibly a horrendous and gruesome death. IP Jitoko and Sgt Josateki, in their respective evidence, stated that Crime Scene Investigators found a bag near the dead bodies containing some baby diapers and milk bottles. This evidence allows me to infer that the family had come to the mountain fully prepared for the child's needs. It further confirms that the family had no intention of ending their lives and expecting to return home.
Sangeetha Devi had a telephone conversation with her mother on the night of the 24th of August. That was the last time Sangeetha Devi heard her mother aler alive. During that telephone conversation, Usha Devi had told Sangeetha that all of them including, Nirmal, Kajal, Sanah, Samarah, and baby Samaira, were planning to go to the Mountains in Sabeto on the following morning with the Accused to perform a ritual. They were going in the Accused's car. They were planning to return home by midday tomorrow.
It is prudent to determine whether the evidence given by Sangeetha Devi is credible, reliable and truthful before I proceed to consider the two statements made by Usha Devi and Kajal Nileshni to Sangeetha. The Defence proposed that she made up or manufactured evidence. Sangeetha, in her reply, specifically stated that she is telling what her mother told her. She had told everything she knew about this matter in evidence. She explained the reasons for making four separate statements to the Police during the investigation. The learned counsel for the defence did not cross-examine Sangeetha regarding the statements made by Usha Devi on the night of the 24th of August 2019 and Kajal Nileshni on the morning of the 25th of August 2019. The defence only challenged the location of the mountain as Sangeetha mentioned about Sabeto Mountains and not Nausori Highlands. Sangeetha stated that she was unaware of the difference between the Sabeto Mountains and Nausori Highlands. According to her understanding, all the mountains in the interior were referred to as Sabeto Mountains. I do not find this issue had shaken or discredited the reliability and credibility of her evidence.
Moreover, her evidence concerning the telephone conversations she had with Ms Sera Tokalau and the Accused on the 26th of August 2019 is corroborated by the evidence of Ms Sera Tokalau. The Accused also admitted in his evidence that he had conversed with Sangeetha on the phone regarding her family. Considering the reasons discussed, I find Sangeetha Devi is a credible and reliable witness. I accordingly accept her evidence as truthful evidence.
It is a basic evidential rule in Common Law that hearsay evidence is inadmissible in criminal proceedings. Accordingly, any statemeher than one made by a pers person while giving oral evidence in the proceedings as evidence of facts or opinion is inadmissible in evidence. (vide; Archbold, 2018 Ed,11.1). The Fiji Court of Appeal in Goundar v State [2020] FJCA 4; AAU29.2015 (the 27th of February 2020) outlined the scope of the rule against hearsay, where Nawana JA held that;

“cour court, in that case, had the opportunity to consider the ambit of hearsay evidence, which has, however, gone through changemany jurisdictions to allow its inclusion in a much wider sense than it was some decades bees before. This court adopted the determination as regards hearsay as explained in the case of Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 at 969, which could, in my view, be adopted for this case as well, as the matter in issue touches upon the fundamental exclusionary perimeters of hearsay. It was held:

“Evidence of a statement made to a witness ... may or may not be he. Iay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the stat. It is not hearsay when it is proposed to establish by the evidence, not the truth of the the statement, but the fact that it was made.

Accordingly, the conversation between Sangeetha and Usha Devi is admissible to the extent that Usha had made that statement. However, that statement is not admissible as evidence of the truth of what was in the statement. The same principle applies to the conversation between Sangeetha and Kajal on the 25th of August 2019.
I am not considering the evidence of Bijma Wati, Daya Ram and Sanita Devi regarding their conversations with Ushi, as those evidence are here hearsay and inadmissible.
However, the truthfulness of the facts contained in the above statements made by Usha Devi and Kajal are admissible under the principle of res gestae, which is an exception to the rule against hearsay.
Prematilaka JA in Nadim v State [2015] FJCA 130; AAU0080.20he 2nd of October 2015) found that the evidence admissible under the principle of reres gestae are the facts closely linked to the transaction which is disputed before the Court and without it, the main issue may not be adequately comprehended. Prematilaka JA held that;
“It can bean be broadly defined as matters incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of the participants; the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character”

Prematilaka JA had then identified three main situations where the principle of res gestae is admissible and relevant. They are that;
“The admissibility and relevance of res gestae may be red from a large bode body of legal literature and judicial decisions and it could be summarised and condensed into three differituations.

The facts which though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

Facts which are (a) occasion (b) cause or (c) effect, immediate or otherwise, of relevant facts or facts in issue and facts which constitute the state of things under which they happened and facts which afford an opportunity for their occurrence or transaction, are relevant.

(a) Facts showing or constituting motive for any fact in issue or relevant fact, (b) facts showing or constituting preparation for any fact in issue or relevant fact and (c) facts showing or constituting previous or subsequent conduct influencing or being influenced by any fact in issue or relevant fact, are relevant”

The facts contained in the two statements made by Usha Devi and Kajal Nileshni are so connected with the facts of the central issue of the case. Those facts explain the circumstances and the reasons for the trip the deceased family made to Nausori Highlands with the accused, thus assisting the Court to comprehend the events that took place on that day properly.

Be that as it may, the Accused admitted in his evidence that Nirmal and himself arranged this journey a few days before the 25th of August 2019, though he was not aware of the destination or the purpose of the trip. Moreover, the Accused admitted that he had taken Nirmal and his family to Nausori Highlands in his rental car on the morning of the 25th of August 2019. These two pieces of evidence corroborate the facts contained in the above two statements made by Usha Devi and Kajal Nileshni.

IP Jitoko and his team of Crime Scene Investigahad found certain ritual items at the bottom of the cliff where the dead bodies were found.ound. According to the evidence given by IP Jitoko and WDC Annie Maria Veredali, it is implausible that a person had access to the bottom of the cliff as the terrain surrounding the area is very steep, sloppy and dangerous. The Accused is seen in the last two photos taken from Nirmal's mobile phone, standing on the top of the same cliff, where the bodies were found, at 10.23 a.m. on the 25th of August 2019.

Those ritual items were later analysed by theor Scientific Officer of Fiji Police, Ms Naomi Tuitoga. The Accused's DNA was found on five five of those items. The Defence did not challenge the chain of custody and integrity of the items found at the bottom of the cliff. Moreover, the Defence did not challenge the correctness of the DNA report. The main contention of the defence is founded on the issue that two other unknown individuals had also contributed to the DNA found on those items. Ms Tuitoga specifically stated that the investigators did not provide her DNA samples of any other person besides the DNA samples of the Accused and the five deceased individuals.

Ms Tuitoga had compared the DNA samples obtainem the five deceased individuals with the DNA samples found on those items. None of the DNA DNA samples of the deceased individuals matched with the DNA found on those items. Considering the location of the cliff and its bottom, the presence of the Accused's DNA on those ritual items and the Accused being seen at the top of the cliff on the morning of the incident, I find it is highly improbable that another person had brought these items to this location. In view of these reasons, I can safely conclude that the Accused had brought these ritual items to this location. This conclusion further supports and corroborates the facts contained in the statement made by Usha Devi.

Having considered the above-discussed reasons, I can safely conclude that these two statements were spontaneous and made mporaneous to the main tran transaction, thus excluding the possibility of concoction or distortion. I accordingly accept these two statements made by Usha Devi and Kajal Nileshni as evidence to establish that they had gone to Nausori Highlands with the accused to perform a ritual. Therefore, the purpose of this visit to Nausori Highlands was to perform a ritual event.

The extraction report of the mobile phone of Kaonfirms that she had sent a message to her boyfriend Mr Kupsamy via Viber at 10.19 a.m. inf. informing him that she had reached the destination, presumably Nausori Highlands. She had sent another message to Sangeetha simultaneously, telling her that she would talk later. This message confirms that Kajal was contemplating contacting her sister later.

Mr Kupsamy explained that his relationship with Kajal was going weld they had, at one point, actually discussed about getting married. The messages exchanged nged between them show that they were in a very stable and loving relationship. Hence, there is no evidence to suggest that the personal life of Kajal was in disarray or volatile.

The above-discussed circumstantial evidence allows me to form an indisputable, certain and undeniable inference that none of the deceased had any reasons to carry out a mass suicide plan, poisoning all of them. Accordingly, this conclusion leads to a further indisputable inference that this incident is a crime of murdering five individuals by poisoning. This conclusion establishes the corpus delicti.

The Supreme Court of India in Anant Chintaman Lagu v The State of Bombay ( 1960 AIR 500, 1960 SCR (2) 460) had outlined three factors that the prosecution has to establish in a case of murder by poisoning. They are that;

The death took place by poisoning,

The accused had the poison in his possessioession, and

The accused had an opportunity to administer the poison to the deceased,

In Lagu (supra), the Appellant was convicted for murdering one of his patients by poisoning. He had taken her to Bombay in a train from her hometown of Poona on the pretext of taking her for a consultation with a Doctor in Bombay. When the train reached Bombay, she was found unconscious. The Appellant had admitted her to a hospital but had given a false name to cover her identity and the history of her medical condition. When she had passed away, he had abandoned her body, leaving the hospital to deal with it as an unclaimed dead body. Upon his return to their town, he had spread the news that she was still alive and started to misappropriate her properties. The Appellant tried by all means to avoid the post-mortem examination of the deceased lady. There was no direct evidence that the death was caused by poisoning as the autopsy and the chemical analysis had failed to disclose any poison. The Supreme Court of India held in that matter that the Court must look at the conduct of the appellant both before and after the death of the deceased, that the corpus delicti could be established by a number of facts that confirm the commission of the crime certain. The conduct of the Appellant and the medical evidence unerringly establish that the deceased passed away as a result of the administration of some unrecognised poison or drug and that the appellant was the person who administered it.

The Supreme Court of India in Lagu (supra) found that;

In view of the above dicta in Lagu (supra), circumstantial evidence is strong and decisive enough to establish the guilt of murdering by poisoning. In this case, it is confirmed that the cause of death is fatal acute pesticide poisoning. However, there is no evidence to establish the identity or the nature of the pesticide found in the dead bodies. There is no d evidence that that the Accused had any form of pesticides in his possession - neither any direct evidence that the Accused had administered the poison to these five deceased individuals. Moreover, there is no evidence to establish the pesticide found in the bottles or the chlorophenol found in the tomato sauce bottle are similar to the pesticide found in the bodies of the five deceased individuals.

In the absence of such evidence, the Court must proceed to determine whether the circumstantial evidence that the Prosecution is relying on are cogent and decisive enough to safely form an undeniable, indisputable and certain inference that the Accused had administered the poison either with the intention to cause the death or was reckless as to causing the death.
The Last Pers Person Seen with the Deceased

By presenting these circumstantial evidence, the Prosecution reon relies on another important principle of evidence, that is “The last person seen with the deceased alive”. If the Prosecution established beyond reasonable doubt that the Accused is the last person seen with the deceased alive, then he must offer an explanation as to how and when he parted company with the deceased or the circumstance of the transaction which led to the death of the deceased. (vide; Krishna Mahadev v The State of Maharashtra, Criminal Appeal No. 726 OF 2015). If the Accused fails to present a reasonable explanation, such failure provides an additional link in the chain of circumstances proved against the accused.

The Supreme Court of India in Dharam Deo Yv State of Uttar Pradesh (2007) 3 SCC 755, CRIMINAL APPEAL NO.369 OF 2006) held that that the circumstance of being last seen together with the deceased should be taken into consideration together with the conduct of the accused and other circumstances of the case. The circumstance of being last seen with the deceased should not be the only basis of the conviction. The Supreme Court of India found that;
“It is tris trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible”

I will proceed to briefly examine some of the leading case authorities in other common law jurisdictions that were decided solely on the circumstantial evidence and the principle of being the last person seen with the accused.

The Court of Appeal of New Zealand in The King v Horry (1952) N.Z.L.R. 111 found that the Court is entitled to regard the concurrence of so many separate facts, acts and circumstances in order to establish the fact of death, excluding any reasonable hypothesis other than the death and finding the accused had murdered the deceased.
In King v Horry (supra), the Appellant had married the deceased using a different name. He was a tabut introduced himself to t to the deceased and her family that he was involved in a very sensitive wartime spy network; hence he wanted to keep his marriage a secret. He married the deceased on the 11th of July 1942. Before their marriage, the deceased had disposed of her properties and encased her savings. They had spent their first night at Helensville Hotel. The following day, they visited one of her friends, informing her that they were going abroad. That was the last time she was seen alive. The deceased's parents received several mails from the Appellant from overseas, informing them that they were in Australia and then sailing to England. A few years later, the Appellant visited her parents and informed them the ship they were sailing to England was attacked by a German Submarine. He lost contact with her during that ordeal as he was rescued by a British Military vessel. It was found that the Appellant had never left New Zealand and married his fiancé using his actual name. During the years after her disappearance, the Appellant had used the deceased's money by forging her signature. There were neither the evidence of dead body nor traces of the body norhing in the form of a confession; still, the Court of AppeaAppeal found that the circumstantial evidence was so decisive and cogent that render it morally certain and eliminate any ground of reasonable doubt, that the deceased was murdered and the appellant authored it. The Court of Appeal, citing Reg v Woodgate (1877) 2 N.Z. Our (N.S.) C.A. 5) held that;
&#8t necessecessarily follows that evidence tending to establish corpus delicti may at the same time tend to prove who was the perpor. But for this purpose, all the circumstances of the case and every part of the conduct ouct of the appellant may be taken into consideration, if there is any reasonable hypothesis consistent with innocence the charge must fail for lack of proof”

On the basis of the guidelines expounded in King v Horry (supra), the Queen's Bench Division of the Court of Appeal in England in Regina v Onuferjczyk (1955) 1 Q.B. 388, (1955) All E.R. 247) convicted the Appellant for the murder of his business partner who had disappeared without leaving any trace of his dead body, or direct evidence of his death or the way he had died. There was no form of a confession by the Appellant. However, the Court found there were solid evidence, in particular the conduct of the Appellant, which showed that he knew that the victim could never appear again but tried to fabricate that he was still alive.

King v Horry (supra) and Regina v Onuferjcsupra) had been decided on the basis that the Appellant was last seen with the deceasedeased before the deceased disappeared. The Court of Criminal Appeal in R v Mery Ann Nash (1911) 6 Cr App R 225 found the Appellant guilty of murdering her own five years old illegitimate son on the basis that the Appellant was last seen with the deceased, near the well in which the body of the child was found in an unrecognisable and highly decomposition condition. The Court had considered the conduct of the Appellant after the disappearance of the child, where she stated that he was alive and staying with another family.

According to the reasons outlined in King v Hosupra), Regina v Onuferjczyk (supra), and R v Mery Ann Nash (supra), the Court curt could still find the Accused guilty of murder, in the absence of direct evidence of the dead body or the manner the deceased had died, if the circumstances of the case and conduct of the appellant are so cogent and decisive, leading to an indisputable and undeniable only inference that the Accused was the author of the crime. This indisputable and undeniable inference must rule out any reasonable hypothesis consistent with the Accused's innocence.

I shall now turn on analysing the evidence presented by the Prosecution to determine whether the Prosecution has successfully established that the Accused was the perpetrator who had administered the poison to these five individuals, thus murdering five of them.

The Prosecution presented evidence to establish that the Accused was last seen with the deceased family at Nausori Highlands on the morning of the 25th of August 2019. The Prosecution then presented the evidence to establish the Accused's conduct before, during, and after this alleged incident. Moreover, the Prosecution presented evidence to establish certain other circumstances, pointing to the guilt of the Accused.
Prospectant Evidence

I now draw my attention to evaluate the evidence relating to the incidents, acts, state of mind and affairs that were existed before the 25th of August 2019.

In their respective evidence, the two daughters of Nirmal and Usha Devi stated that the Accused was a very clerson to their late father.ther. Whenever the Accused visited Fiji, he spent more time with their father. Their late mother always prepared meals for him whenever he was in Fiji. The Accused, himself, in his evidence, admitted that Nirmal was his best friend and was considered him more like his brother. According to the Accused, Nirmal and his family used to seek his advice and treated him with respect and dignity. Usha Devi had been a very close person to the Accused, and she always cooked his favourite curries and food. It is essential to note that the Accused had been helping, assisting, and participating in rituals and prayer ceremonies organised by the Nirmal family. The Accused, in his evidence, admitted that Nirmal contacted him on his mobile phone from the BSP Bank, asking his advice about the withdrawal of his term deposit on the 21st of August 2019. He had told the Accused that the Bank was refusing to release his funds. This evidence establishes the close relationship between the Accused and Nirmal and his family based on trust and respect.

Mr Pramesh Chandra, who was working as a sales executive at the Gounder Hardware in August 2019, stated in his evidence the Accused came to his hais hardware shop on the 21st of August 2019 to purchase cement. Mr Chandra could recall that the Accused had first spoken to the Cashier. He was standing close to the Accused. The Cashier then inquired with Mr Chandra about the availability of the cement. Mr Chandra then interacted with the Accused in selling cement and made arrangements to deliver it to the person coming to pick it up. Mr Chandra specifically stated that the Accused did not ask about glyphosate on the 21st of August 2019. According to Mr Chandra, the Accused came again in his rental car a few days later. The Accused had inquired about the chemicals they were selling at that time. Mr Chandra had shown him the three types of chemicals they had. The Accused had then asked whether they sell "lannate", a highly toxic pesticide. Chandra didn't know much about the chemical "lannate'; hence he had referred this inquiry to his manager Mr Niraj Chand. The manager had informed the Accused that they do not sell "lannate', but he could check it at the KK Hardware. The Accused then left the hardware. Mr Niraj Chand gave evidence corroborating the account of Mr Chandra.

A few days later, both of them were having “kava” while checking the online news and found the photo of the Accused as the suspect of the alleged murder case of Nausori Highlands. They recalled that the same person came to their shop looking for the chemical "lannate". They informed their owner about this incident and then reported it to the Police. Both of them were later called to the Namaka Police Station to attend an Identification Parade, where they positively identified the Accused as the person who came to their hardware, inquiring about chemical "lannate".

Mr Chandra, in his evidence, said that he was standing very closed to the Accused when he spoke to him during hrst visit. During the seconsecond visit of the Accused, the conversation lasted for about 5 to 6 minutes, and the Accused was standing just two meters away from him. Mr Chandra correctly explained the Accused's physical appearance and body description, so did Mr Niraj Chand in his evidence. Mr Niraj Chand was also sitting very close to the Accused when he came to the hardware, asking about the chemicals. Mr Niraj Chand was not at the hardware when the Accused visited the first time. According to the evidence of Mr Chandra and Mr Niraj Chand, I am satisfied that they have clearly and positively seen the Accused at the hardware when he visited it. The Accused admitted in his evidence that he went to the hardware on the 21st of August 2019 to purchase cement and also inquired about glyphosate. He denied visiting the hardware after that and asking them about the chemical "lannate".
style='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='65' value="65">ASP Harish Prasad explained how he had cted the Identification Parade of the Accused at the Namaka Police Station on the 15th of Seof September 2019. When the learned counsel for the defence asked him during the cross-examination whether the Accused willingly participated in the identification parade and fully cooperated, ASP Prasad affirmatively confirmed that the Accused cooperated with the Police and willingly participated in the Identification Parade. The defence did not challenge or dispute the conduct of the Identification Parade. Accordingly, I find that Mr Chandra and Mr Niraj Chand had positively and correctly identified the Accused as the person who visited their hardware twice, asking for chemical "lannate".
I find the evidence of Mr Chanrda, Mr Niraj Chand and ASP Prasad credible and reliable; hence I accept them as tru. I accordingly find the Prhe Prosecution has established beyond reasonable doubt that the Accused had gone to the Gounder Hardware, sometimes after 21st of August 2019 but before the 25th of August 2019, and inquired about the chemical “lannate".

Another incident that the Prosecution intends to establish is the statement made by Usha Devi during the telephone conversation with Sangeetha on the night of 24th of August 2019, stating that Nirmal's family was going to the mountains somewhere in Sabeto with the Accused in the morning of the following day to do some rituals. They were planning to go there in the Accused's car and expecting to return at the midday of the 25th of August 2019. I have already discussed the admissibility of the statement made by Usha Devi as evidence of the truth of facts contained in it. On the same basis, I accept the statement made by Kajal to Sangeetha on the morning of the 25th of August 2019 during their telephone conversation.

As I concluded above, the Prosecution has established beyond reasonable doubt that Nirmal and his family had gone to ri Highlands with the AccusAccused on the morning of the 25th of August 2019 to perform a ritual and expected to return home by midday. In addition to that, the Prosecution has proven beyond reasonable doubt that the Accused had brought those ritual items that the Crime Scene Investigators later found at the bottom of the cliff.
Cotant Eant Evidence

The Prosecution presented evidence tablish that the Accused was present with the deceased familfamily at Nausori Highlands on the morning of the 25th of August 2019. The Accused did not dispute that he went to Nausori Highlands, taking the family in his car. He then dropped them at the location, returned home alone as he was expecting some visitors in the afternoon.

The Accused, in his evidence, said that he received a missed call from Nirmal on his m phone when he returned home from Medisure Pharmacy. As he s he received the call from Nirmal, the battery of his mobile phone went off. He just left his mobile phone in the car and went to Aerotown, where he met Nirmal and his family in their car. Nirmal had told him to go to the New World Supermarket car park at Votualevu. He then followed Nirmal's car and parked beside his car. Nirmal then loaded boxes and some bottles into his vehicle. They all then boarded into his car and asked him to go. According to the Accused, a few days before the 25th, Nirmal and Kajal came and arranged this trip. However, Nirmal did not disclose any details of this trip, including the destination and the purpose. As planned, the Accused went to Aerotown when he received the missed call from Nirmal.

Once he drove out of the car park and reached the roundabout, Nirmal had asked him to turn left. Usha Devi then told Nirmal to tell the Accused where they were going instead of telling him to turn right and left. Then only Nirmal said to the Accused that he had to take them to Nausori Highlands. According to the Accused, they left New World Supermarket after 10 am. They reached the destination at the highlands at around 11 am. They then unloaded the box and water gallons. The Accused helped Nirmal to clean the baby who had vomited. He poured water from the red tomato sauce bottle for Nirmal to clean the baby. The Accused then drank some water from the same bottle. While the ladies were sitting under a tree, the Accused and Nirmal went down to slop. Nirmal was taking photos of the area. Once they took the photos of the scenery, they both came up to the car. The Accused rested while in the car as it was very hot, while Nirmal was sitting in the front passenger seat. Nirmal had told him that they were waiting for a person to make a deal. After that, they would come back with the same person. The Accused had to go back as he was expecting some visitors in the afternoon. When the accused was parting his company with Nirmal and his family, he asked Nirmal whether he was sure about the person coming to pick them up because it was a Sunday and no transport was available for them to come back.

The Accused stated that they left the New World Sarket car park after 10 am. He called Mr Jithendra Sharma, a taxi driver, to establish that that Mr Sharma saw Nirmal and his family around 10 am on the 25th of August 2019 at the New World supermarket Car park. The accused did not dispute the CCTV footage obtained from the New World Supermarket and only disputed the time of the footage. (vide: Paragraph 12 (iv) of the Amended Admitted Facts).

According to the CCTV footage, Nirmal's car entered and parked at 9.24.04 am. The Accused's car followed soon after and parked at 9.24.14 am. The accused's car left the car park at 9.26 44 am after Nirmal and his family got into it. During that time; a light colour taxi entered the park from the main gate at 9.25.40 am, but it did not stop near the accused's car.

According to Mr Sharma, he was driving a grey colour taxi and entered the car park from the main gate. He had seen Nirmal was loading stuff. He had spoken a few words to Nirmal and then went away. This evidence of Mr Sharma contradicts the above admission made by the accused in the Amended Admitted Facts. The CCTV footage dose not show any grey colour taxi entering from the main gate and stopped beside Nirmal’s car. I accordingly do not accept Mr Sharma's evidence as being truthful.

In his evidence, the Manager of the supermarket said that the time could be fluctuated by 5 to 10 minutes. The learned counsel for the Defence never questioned or invited the Manager of the Super Market or S.P. Ayiaz Ali, who had gathered the CCTV footage of the New World Supermarket to comment about this time difference.

The accused's timing of the events in the morning of the 25th is mainly based on the timehown in the CCTV footage of Medisure Pharmacy. However, SP , SP Ali, in his evidence, specifically stated that the time indicated in the CCTV footage of Medisure Pharmacy was not accurate as the time was 45 minutes ahead of the correct time. The learned counsel for the defence did not question or invite SP Ali to comment about the contrary version brought by the accused in his evidence.

Sgt Savenaca Siwatibau had conducted a digital forensic examination on the mobile phones of Nirmal, Kajal Nileshni, Sangeetha Devi, the accused and Mr Kupshamy. According to Savenaca, the last two photographs taken from Nirmal's phone were taken at 10.23.33 am. Kajal Nileshni had sent her last message to Mr Kupshamy via Viber, stating that "we are here" at 10.14 am. The first photograph taken from Nirmal's phone was 10.09.58 am. The accused, in his evidence, merely stated the timing of those photographs were wrong. Once again, the learned counsel for the defence did not cross-examine Sgt Savenace regarding the time of those photographs, presenting him an opportunity to comment about the defence's version.

It is a rule of evidence based on the principle of fairness of the trial that if a party intends to bring a dint or contradicting versionrsion of the evidence, it is a duty of that party to give an opportunity to the witnesses of the opposing party to make comments on it. This rule was established by Brown v Dunn. (1893) 6 R. 67, H.L) The rule is based on the principle that it is unfair to deny a witness the opportunity of explaining a point that will later be used to invite criticism or disbelief in the evidence. If a party fails to follow this rule, the Court could take into account that the contradictory evidence was not put to the witness and accords it less weight than it may otherwise receive.
Accordingly, I find the evidence given by the accused stating that he New World Supermarket after 10 am and reached the destinattination at the highland after 11 am is not true. Moreover, I find that this evidence has failed to create any reasonable doubt about the prosecution's evidence in relation to the time the accused leaving New World Super Market with deceased family and the time he reached the destination. In view of the reasons discussed above, it is safe to make an undeniabd indisputable inference that the accused and the deceased ased family reached Nausori Highlands before 10.09.58 am. I can safely make a further inference that the accused had returned to Nadi around 12.15 pm to 12.35 pm. These proven facts establish another fact that the accused had spent at least nearly one and a half an hour at Nausori Highlands.
The Accused, himself, in his evidence, stated that usually, people t go to the location where the bodies were found. He had been visiting this location since ince 1977. Mr Sitareki Nagala, the villager who found these dead bodies, stated that no one goes to this place as it is steep and far away from the main road. No one could see the location from the main road. Mr Mohammed Javed, a driver who had been driving along this mountain for the last fourteen years, has not seen anyone going to this location. Evidence of IP Jitoko, Sgt Seteraki, Sgt Bibi and Sgt Anil Kumar confirm that it was tough for a person to go down to this location at the tip of the cliff as the slope is very steep and dangerous. The 3D video confirms the remoteness and the isolated nature of this location at the tip of the cliff.

Hence, I find that the Prosecution has established beyond reble doubt that the Accused was seen with the deceased family at the exact remote and isolatsolated location in the Nausori Highlands where the five bodies of the family were found in the following morning, that was nearly 24 hours after the accused was seen with them.

As I discussed above, the burden now shifts on the Accused to offer a reasonable explanation of how and when he parted his company with the deceased family or the circumstances of the transaction that led to these five individuals' death. This does not mean the onus of the Prosecution to prove the charges against the Accused beyond reasonable doubt has shifted to the Accused. He is still not required to prove his innocence. He is only needed to offer a reasonable explanation. The burden of discharging this onus of the Accused is the evidential burden, which means adducing or pointing to evidence that suggests a reasonable explanation (vide; Section 59 of the Crimes Act). The Prosecution still holds the burden of disproving the reasonable explanation provided by the Accused. If the Court satisfies the explanation offered by the Accused may reasonably be true, although the Court is not convinced that it is true (vide; Abramovitch (1914) 84 L.J.K.B 397), the Accused has successfully discharged his onus of offering an explanation.

The Accused did not dispute that he brought the deceased family to Nausori Highlands in his car but denies the allegation of murdering them, stating that he parted his company without causing any harm to them. Nirmal and Kajal had arranged this trip with the Accused a few days before the 25th of August 2019. The Accused was only asked to come to Aerotown on the morning of the 25th of August 2019. The Accused had gone to Aerotown when he received a missed call from Nirmal. According to the Accused, he was not aware of the details of this trip, including the destination and the purpose. Nirmal told him the destination only after they embarked on their journey to the highlands.

Considering the nature of the close relationship the Accused had with Nirmal based on respect and care, it is highly improbable that a man in this mature age as of the Accused had blindly followed the request of his best friend without inquiring about the details of the trip. Especially, they were close neighbours; their houses are located within just meters apart. Under these circumstances, I am not in a position to accept or believe that the Accused had agreed to pick them at a distant location, instead of at their home, with certain boxes, items and bottles, and then go to a place which he was not aware of. Hence, I do not find this as a reasonable explanation offered by the Accused.

The Accused explained that he had just walked down to the steep slope with Nirmal to see the scenery while Nirmal was takiotographs. Having carefullyfully considered and compared the location in the two photographs in which the Accused appeared carrying a bag on his shoulder, with the 3D version of the mountain tendered in evidence, it is clear that he was standing just near the location where the bodies were found. The two photographs that took by Nirmal immediately before the above-said two photographs show the edges and steep drop of the cliff, indicating that they had come down all the way to the edge of the cliff.
I do not accept the explanation given by tcused of carrying a bag on his shoulder when he went down to the edge of the cliff. Supposepposedly, he had taken back the bag from Kajal which she had taken from him a few days ago. In that case, he could have easily left it in his car and walked down this steep and dangerous slop conveniently and safely, without taking the trouble of carrying an empty bag as he claimed, on his shoulders.
I have already discussed and found that the Prosecution has proven beyond reasonable doubt that Nirmal and his family came to Nausori Highlands with the Accused on that fateful morning to perform a ritual. Hence, I am satisfied that the Prosecution has successfully discharged their onus of disproving the explanation offered by the Accused (vide; Section 57 (2) of the Crimes Act).

Having considered the reasons discussed above, it is myidered opinion that the Accused has failed to offer a reasonable explanation as to how and and when he parted his company with the deceased family or the circumstances of the transaction which led to the death of these five individuals
Retrospectant Evidence

Sangeetha Devi contacted Ms Sera Tokalau from Australia to inquire about her parents on the morning of the 26th of August 2019. Ms Tokalau was not at home when Sangeetha contacted her. She then contacted her mother-in-law and found that Kajal and the two daughters had not gone to school in the morning. Ms Tokalau had then relayed the message to Sangeetha. When she reached home, Ms Tokalau had asked the Accused and his wife whether they had heard about Nirmal and his family. The Accused had replied, saying they too had not heard about them. He had further told Ms Tokalau that they tried to call Nirmal in the morning, but the phone was ringing. Sangeetha had then called Ms Tokalau, requesting her to go and check Nirmal's house. When she went to Nrmal's house, she found Usha Devi's mother, Bijma Wati and another lady sitting outside the house. They also tried to contact Nirmal and his wife but to no avail.

When Ms Tokalau went back to her home, she had told the Accused that they should report to the Police that Nirmal and his family were missing. The Accused replied, telling Ms Tokalau, "no, not yet". Once again, Sangeetha called Ms Tokalau on her mobile phone. She then handed the phone to the Accused. They then talked for a while in Hindi. In a while, Ms Tokalau found the news about the recovery of dead bodies in Nausori Highlands. When she relayed that news to the Accused, he said," it may not be them". Afterwards, the Police came and broke the news of the tragedy. Neighbours started to gather around Nirmal's house. The Accused was also with the neighbours but did not say anything. During the cross-examination, Ms Tokalau's evidence about the Accused’s reactions was not challenged or suggested otherwise by the learned counsel for the defence. The cross-examination of Ms Tokalau was primarily focused on eliciting the evidence of the Accused's character. Ms Tokalau's evidence was further confirmed and supported by the evidence of Sangeetha. I accordingly accept the evidence of Ms Tokalau as credible, reliable and truthful evidence.

Sangeetha said she spoke to the Accused via Ms Tokalau's mobile phone. She had asked the Accused; "Uncle, where are my parents? They had gone with you?'. The Accused sounded shocked and denied that he went to the mountains with Nirmal and the family. He replied that; “They had not gone with me". He had further told Sangeetha that he did not go to her parent's place for dinner the previous night as he was not invited. The Accused had promised her that he would inquire about her parent as he knows a few Police officers.
Sangeetha's evidence concerning the csation she had with the Accused was not challenged or suggested otherwise during the cross-ross-examination. The cross-examination of Sangeetha was focused on the four statements she made to the Police, the conversation she had with Usha Devi regarding migrating to New Zealand with the help of the Accused and the difference between the Sabeto Mountains and Nausori Highlands. tyle='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='94' value="94">The Accused, in his evidence, denies thateetha asked him whether he had gone with her family on the previous day. However, the defendefence did not put this version of the event, which aimed to discredit or contradict the version of the event explained by Sangeetha when she gave evidence, thus denying her fair opportunity to comment on this version. Therefore, I do not find much weight in the Accused's above denial and accept the version of the event explained by Sangeetha as the truth.
Nonetheless, the Accused admitted that Sangeetha inquired about her parents. The Accused explainat he did not tell Sangeetha that he had taken her family tily to Nausori Highlands because, at that point in time, he was not aware of what actually happened to them. He further said that he did not want to make her upset and panic by telling her that.
Mr Parveen Singh, a neighbour of bothAccused and Nirmal, received a call from the Accused at around 10 am on the 26th of August gust 2019 to come to his place as they have to finish the leftover grog which they had consumed in the previous evening. When he met the Accused, Mr Parveen Singh had asked the Accused when he would build the shed at the Nirmal compound for the prayer ceremony scheduled on Tuesday. The Accused then replied, saying that; “he too does not know where this gang went". This evidence of Mr Parveen Singh was not challenged or suggested otherwise by the defence in the cross-examination.
In light of the above-discussed evidence of Ms Tokalau, Ms Sangeetha Devi and Mr Parveegh, I find the Prosecution has established beyond reasonablonable doubt that the Accused had concealed the fact that he took Nirmal and his family to Nausori Highlands in his car in the previous morning. When these three concerned individuals asked the Accused about Nirmal and his family, the discovery of five dead bodies had not yet been made public.

The Accused's explanation that he, too, was not aware of Nirmal as family at that point in time is untrue. If the account given by the Accused was accurate,rate, that he left the deceased family at Nausori Highlands unharmed and safely, the Accused had no reason to conceal that fact when the concerned neighbours and family members of Nirmal were searching for them.

The Accused and Nirmal were not just neighbours. They were very closed, and the Accused had considered him more likebrother. Considering the dehe depth and the closeness of their relationship, the Accused must have promptly alarmed others and the authorities, informing them that he left Nirmal and his family at Nausori Highlands the previous morning, and they must start to look for them in that area. I especially emphasise the fact that the Accused had warned Nirmal that they wouldn't find any transportation since it was a Sunday when he parted his company with them. Hence, it appears from the Accused's evidence that he knew that he was leaving his best friend and his family in a very remote and isolated location. According to the Accused, he had been visiting this location at the highlands since 1977; hence, he must have known the remoteness, lack of transportation, and the location's difficulties. In view of these reasons, I find the Accused's explanation for not telling them that he took the family to Nausori Highlands is not reasonable.

The above conducts of the Accused can be comprehensively explained with this old maxim that "Nemo gratis mandex Once the news about the dead bodies emernd the Police had confirmed the deceased's identity. The Police then arrived at Nirmal's ho's house. The Accused then approached a police officer he had dealt with before and asked him to come to his gate. It was Sgt Semi Vuniwai. According to the Accused, he had informed Sgt Vuniwai that he had taken these people and dropped them at Nausori Highlands.

On the contrary, Sgt Vuniwai stated that the Accused had revealed much more details. Nonetheless, I do not wish to discuss the truthfulness of the facts in the statement made by the Accused to Sgt Vuniwai. I will now proceed to consider the Accused's conduct in telling Sgt Vuniwai that he had taken the deceased family to Nausori Highlands.
The police team led by Meli Doughty came to the deceased’s house. At that point in time, the Accused knew the bodies of Nirmal and his family had discovered in Nausori Highlands, and Ms Sangeetha Devi knew that he had taken them to the mountains to perform a ritual. The Accused had first spoken to Meli Doughty, the leader of the Police team. However, he decided to reveal this vital information to Sgt Vuniwai in private at the gate of his compound.
In his evidence, the Accused claimed Sgt Vuniwai is a corrupt Police Officer. Instead of informin senior officer of the team, the Accused had selected the cthe corrupt Sgt Vuniwai, as he claimed, to reveal this important information about his best friend and his family. This evidence allows me to safely conclude that the Accused knew at that point in time, that Ms Sangeetha Devi will surely inform the Police about the fact that he had taken the family to Nausori Highlands. It was a matter of time only. Yet, at that point in time, the Accused was not aware that Nirmal's mobile phone was in his car, under the front passenger seat. Moreover, the Police had yet to ascertain the cause of death and classify the incident as a crime. <
Having received a very vital inforn from the Accused, Sgt Vuniwai had not made any effort to obtain a statement of the Accuseccused in relation to the information revealed by him. The Accused had gone back to the group of neighbours who were drinking grog at his home and joined their conversation.

The next incident that the Prosecution wanted to establish was the Accused's reaction and conduct when Mr Sofeed found and handed over Nirmal's mobile phone to him in front of the concerned neighbours. Mr Sofeed said that the Accused looked frightened when he handed over the mobile phone to him which was found in the car. The Accused then opened the phone cover. When he opened the phone cover, the driving licence of Nirmal fell in front of the neighbours who were drinking gorge with the Accused. The evidence of Mr Sofeed about the Accused's frightened look was not challenged or proposed otherwise by the defence during the cross-examination. Hence, I consider this piece of evidence as unchallenged and truthful evidence, establishing that the Accused looked frightened when Mr Sofeed gave him Nirmal's phone.
Mr Parveen Kumar was also drinking grog with the Accused when Mr Sofeed brought Nirmal's Phone. According to Mr Parveen Kumar, he had heard the Accused was saying "the grog is up to my head, he had died, and he had left trouble for me" when the driving license of Nirmal fell from the phone cover. They had asked the Accused how Nirmal's phone got into his car. The Accused then explained that Nirmal came to his house and had a grog session. After the grog and dinner, the accused had gone to drop him home. The phone might have fallen in the car when he went to drop Nirmal. Mr Parveen Singh then told the Accused to give the phone to the Police, who were already there. Instead of giving the phone to the Police, who were already there, the Accused had called a Police officer, informing him about the phone found in his car. The evidence of Mr Parveen Kumar regarding the explanation given by the Accused about how the phone got into his car and that he had asked the accused to give the phone to the Police officers who were already there were not challenged or suggested otherwise during the cross-examination. Therefore, I can safely conclude that the evidence of Mr Parveen Singh is true.
Mr Shalendra Reddy was also present at the Accused's house, drinking grog with the Accused and the group in the afterof the 26th of August 2019.2019. While they were conversing about the tragic death of Nirmal and his family, Mr Reddy had asked the rest of the group, "if it was a murder, why did they never kill the baby". The Accused then said, "the small baby cannot talk, and maybe that's why". In addition, Mr Reddy had asked the Accused how this Nirmal's phone ended up in his car. The Accused had given the same answer, stating that he went to drop Nirmal home a few days ago and maybe that was the time the phone had fallen in the car. Once again, I find the learned counsel for the defence did not challenge or suggest otherwise the evidence of Mr Reddy regarding the Accused's explanation about the mobile phone and the remark he made saying that the baby was not killed because the baby cannot talk, during the cross-examination.

During his evidence, the Accused denied that he gave an explanation saying that the Nirmal'ne might have fallen when he went to drop Nirmal home afterafter the grog session. However, this version of the event was never presented to Mr Parveen Kumar and Mr Reddy, denying them an opportunity to make their comments on this different version of the event; hence I do not find much weight in the above denial of the Accused.

There is no direct evidence to establish who had actually brought Nirmal's mobile phono the Accused's car. Besides that, it is safe to conclude tude that the phone had got into the car after 10.23 am on the 25th of August 2019 and not a few days before the 25th of August 2019 as claimed by the Accused.
tyle='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='111' value="111">Considering the above-discussed evidence, it is my opinion that the Proion has successfully established that the Accused had lied lied about how this Nirmal's phone got into his car. Consequent to that lie, he had concealed about his trip to Nausori Highlands with the deceased family. Having concealed that, the Accused had once again opted to approach Sgt Vuniwai, the corrupt Police officer, as claimed by the Accused, to inform about this phone instead of the Police officers who were already at Nirmal's place. He had done that irrespective of the request of Mr Parveen Singh to hand over the phone to the Police officers who were already there.
This conduct of the Accused must be considered with the last two photographs taken by Nirmal'ne. Considering the manner the Accused was standing in thos those two photographs, I can safely conclude that he was not intentionally posing in these two photographs. He was captured in the two photographs when Nirmal had taken the photos of the area. In view of this conclusion, I can safely form a further inference that the Accused was not aware of these two photographs, which has evidence linking him to the crime scene, when the phone was found in his car. The Accused had no option but to inform the Police when the phone's identity was revealed in front of concerned neighbours. Yet, he opted to contact the corrupt officer, as he claimed, to inform about the phone instead of the Police officers already present.

I now take my attention back to King v Horry (supra). The Appellant wasn to his house when the detectives arrested him on the 14th 14th of June 1951. The wife of the Appellant had asked him what the matter was. The Appellant had replied that "it's that Turner business". She then asked him, "why, has she turned up?". The Appellant replied, "that's impossible, she couldn't have" He had then told his wife "say nothing more about it, say nothing, tell them nothing". The Court of Appeal of New Zealand had taken this response of the Appellant as one of the circumstances that could add to the chain of circumstance that leads to an indisputable inference that the victim was dead and the Appellant was the author of her death.

Turning back to this case, it appears that the Accused did not want to get the Police involved when Ms Tokalau proposed him form the Police. Considerindering the fact Nirmal was his best friend and his family was very close, the Accused had no reasons to deny or delay the involvement of the Police if he had nothing to hide about the fate of this family. In addition to that, if he had left them at the remote mountains on a day with no transportation available, with three young female children, including a toddler, and two adult females, there is no reasonable reason for waiting to receive any other news of them. Hence, I can take his response to Ms Takalau as one of the circumstances that could be taken into consideration in determining whether the accused is guilty of these offences or not.

The Accused response to Mr Reddy saying that the child was not killed because she cannot talk can be compared with the respof the Appellant in King>King v Horry (supra) when his wife asked whether, has she turned up. In line with the approach adopted in Kind v Horry (supra), I consider the said response of the Accused concerning the child as one of the circumstantial evidence that can be considered in determining whether the accused has committed this crime or not.

In conclusion, I find the Prosecution has successfully p beyond reasonable doubt that the;

The death of Nirmal Kumar, Usha Devi, Kajal Nileshni, Sanah Singh and Samarah Singh is a crime of murdering them by poisoning,&

The close and long relationship between the Accused and Nirmal and his family based on respect and care, <
The Accused had gone to the Gounder Hardware sometime after the 21st of August 2019 but before the 25th of Augus9 and inquired about chemichemical "Lannate", a highly toxic pesticide.

Nirmal and his family, including Usha Devi, Kajal Nileshni, Sanah Singh, Samarah Singh and Samaira Kumad gone to Nausori Highlands in the morning of 25th of AugusAugust 2019 with the Accused to perform a ritual at Nausori Highlands,

The Accused had brought ritual items that were later found at the bottom of the cliff by the Crime Scene Investigators.

The Accused was seen with the deceased family at the same remote and isolated location in the Nausorilands where the five bodies of the family were found the fohe following morning, that was nearly 24 hours after the accused was seen with them,

The Accused had spent at least nearly one and a half an hour at Nausori Highlands with the deceased family,

The Accused failed to offer a reasonable explanation as to how and when he parted his company with the deceased family or the circumstances of the transaction which led to the death of these five individuals.

The Prosecution has successfully discharged their onus of disproving the explanation offered by the Accused,

The Accused had not revealed to Ms Tokalau, Mr Parveen Singh and Ms Sangeetha Devi that he took Nirmal and his family to Nausori Hids in his car the previous ious morning. The Accused's explanation that he, too, was not aware of Nirmal and his family at that point in time is untrue.
The Accused knew that Ms Sangeetha Devi was aware of the fact that he had taken the family to Nausori highland when he told Sgt Vuniwai that he had taken the deceased family to Nausori Highlands,
The Accused looked frightened when Mr Sofeed gave him Nirmal's phone,

The Accused had lied about how Nirmal's phone got into his car and concealed his trip to Nausori Highlanth the deceased family.
The Accused had once again opted to approach Sgt Vuniwai, the corrupt police officer as he claimed, to inform about this phone instead of the police officers who were already at Nirmal's place.
The Accused was unaware of the two photographs in Nirmal's phone when it was found in his car.

The Accused had no option but to inform the Police when the identity of the pwas revealed in front of concerned neighbours,

The Accused did not want to inform the Police about Nirmal and his family when Ms Tokalau proposed him to do so,
The Accused responded to Mr Reddy, saying that the chil not killed because she could not talk,

If the above stated proven facts, incidents, acts, state of minds and affairs and circumstances are taken her, it will lead to a cert certain, indisputable and undeniable only inference that it was the Accused who had administered poison (an unidentified pesticide) to Nirmal Kumar, Usha Devi, Kajal Nileshni, Sanah Singh and Samarah Singh on the 25th of August 2019 with the intention to cause their death or was reckless of causing their deaths. Moreover, I find that these above stated proven circumstantial evidence, if taken together, do not lead to any other inferences or hypotheses consistent with the Accused's innocence.

Accordingly, I hold that the Prosecution has successfully proven beyond reasonable doubt that the accused had committed these five offences of murder as charged in the information.
Attempted Murder

I now take my attention to the sixth count of attempted murder.

The alleged conduct of the accused in this offencehe abandonment of Samaira Kumar. This toddler was reaching her first birthday in a few days days. She was abandoned at a remote, isolated location with no food, water or protection. According to Mr Setareki Nagala, if she had crawled a few meters away from the dead body of Usha Devi, she would have fallen from the drop of the cliff.

Having taken into consideration the condition of the terrain and the danger posed e surrounding, I am satisfied that the Accused was aware ofre of the risk of causing death when he abandoned Samaira Kumar in such a remote and dangerous terrain. I, accordingly, find that the Prosecution has successfully established beyond reasonable doubt that the Accused had committed the offence of Attempted Murder as charged under count six in the information.
nclusion

In concn, I find that the Prosecution has proven beyond reasonable doubt that the Accused is guiltguilty of these five counts of Murder, contrary to Section 237 of the Crimes Act and one count of Attempted Murder, contrary to Section 44 and 237 of the Crimes Act and convict to the same accordingly.

.................................................
Hon. Mr. Justice R.D.R.T. Rajasinghe

At Lautoka
19^th January 202

">Solicitors
Office of the Director of Public Prosecution for the State.
Messrs Iqbal Khan & Associates for the Accused.

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