State v Chand [2022] FJHC 60; HAC250.2020 (15 February 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 250 OF 2020

STATE

V

AMAN CHAND

Counsel: Mr Z Zunaid for the State

Mr R Goundar for the Accused

Date of Hearing: 7 February – 9 February 2022
Date of Judgment: 15 February 2022

JUDGMENT

The charge

[1] The Accused is charged with one count of attempt to commit arson contrary to section 363 (b) of the Crimes Act. The charge alleges that the Accused on 22 August 2020 at Nasinu wilfully and unlawfully attempted to set fire to the dwelling house of Asish Chand.

Burden and standard of proof

[2] The burden is on the prosecution to prove the charge beyond reasonable doubt. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

Elements explained

[3] Section 44 (1) of the Crimes Act states that for a person to be guilty of an attempt to commit an offence, the person’s conduct must be more than mere preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact. Intention and knowledge are fault elements of the offence attempted (Section 44 (3) of the Crimes Act). A person commits arson if he wilfully and unlawfully sets fire to any building or structure. An unlawful act is a conduct that is not justified by law. A wilful conduct is a voluntary and deliberate act. A person has intention with respect to conduct if he means to engage in that act.

[4] The elements that the prosecution must prove, in summary, are:

The Accused engaged in an unlawful conduct of setting fire to the furniture inside the dwelling house of the complainant, Asish Chand;

The conduct was wilful and intentional; and

The conduct was more than mere preparatory to the commission of arson.

Agreed facts
[5] The following facts are agreed:

1. The Accused in this matter is one Aman Chand, 33 years old at the alleged time of the offending, employed as a truck driver, resided at Lot 21 River Road, Narere.
2. The complainant in this matter is one Asish Chand, 39 years old, self-employed, of Lot 21 River Road, Narere.
3. The Accused and the complainant are brothers.
4. Identity is not an issue in this case.
5. On the 22^nd of August 2020 at around 11pm, an argument occurred between the complainant and the Accused.
6. On the same night, the Accused had consumed alcohol prior to the argument.
7. During the argument, the Accused then went and turned off the water meter which was leading to the house that he was residing in.
8. It is agreed that from the fire report, should the fire had not been put out, the building/house would have most likely caught fire.
9. The Accused was arrested by police and interviewed under caution.
   

Summary of evidence
[6] The prosecution called five witnesses and the defence called one witness.

[7] Asish Chand is the elder brother of the Accused. His evidence is that he allowed the Accused to live in a flat that was attached to his flat. The flats were made of corrugated iron and timber. Their parents lived in a third flat, which were their original family home built by their father. The flats are in a squatter and Asish’s evidence is that he bought his two flats from his brother-in-law in 2014 (PE 1).

[8] Asish operated a billiard shop from his premises and on the night the alleged incident occurred he was at his billiard shop playing billiard with some of his friends from the neighborhood.

[9] Between 10.30 pm and 11 pm the Accused returned home drunk and argued with Asish over his vehicle parking space. During the argument the Accused continuously swore at Asish. The Accused walked ds their parents’ fla; flat and when he returned he hurled further abuse at Asish.

[10] Asish tried to calm the Accdown eaking to him, bum, but the Accused responded by saying ‘wait and see what I am goinggoing to do’. The Accused then went inside his flat for a few seconds and then came out. He continued hurling abuse at Asish and went towards the back of his flat. The water meter was located at the back of the flat. He returned and went inside his flat.

[11] After about 2 minutes, the Accused came out of his flat, locked both the door and the grill and walked to the gate. He opened the gate and stood outside on the road near the church. By that time the curfew tad started and Asish had closed his billiard shop and returned to the terrace of his flat. While he was on the terrace he heard the boys from the church across his flat alerting him of the fid that is when he noticed sced smoke coming out from the Accused’s flat.

[12] Asish rushed down to the Accused’s flat and by that time other people from the neighbourhood had also entered the compound. When he came down he found out that the tap water at the premises had been cut off. He then went and grabbed a fire extinguisher. By that time someone had forced the entrance door open.

[13] When Asish entered the Accused’s flat, the curtains and the couch close to the entrance door of the living room was on flame. He extinguished the flames and stepped out of the house due to heavy smoke. He returned to the flat and went inside the bedroom. He saw a second fire inside the bedroom near the window where there were some clothes and radio. The curtains were on flames as well.

[14] Asish extinguished the second fire and returned to the terrace of his flat. From there he saw the Accused enter his flat and call out to their father that somebody had set fire to the house. Asish said he reported the incident to police.

[15] Krishneel Singh was one of the people who was present at the premises when the incident occurred. The Accused was married to Krishneel’s sister but at the time of the incident the couple had separated. Krishneel said he had no animosity towards the Accused and that they were in talking terms even after the Accused had ended his relationship with them.

[16] Krishneel’s account is consistent with Asish’s account. His account is that thusedcused was drunk and abusive. He heard the Accused threaten Asish that he was going to do something. He saw the Accused going to the back of his flat and then come to his flat. Shortly after he saw smoke coming out of the Accused’s flat.

[17] Krishneel was on the terrace of Asish’s flat. They rushed down and found that the tap water had been cut off. He said that Asish used a fire extinguisher to extinguish the fire inside the Accused’s flat after someone forced opened the door.

[18] After the fire was extinguished they returned to the terrace. While he was on the terrace he heard the Accused call out to his father that someone is burning his house.

[19] Vikash Chand is a friend of the Accused and Asish. He resides in the same neighbourhood. He was present at the scene of the incident, playing billiard with others. He said that the Accused was drunk. He heard the Accused swearing at Asish. He saw the Accused enter his flat and then go towards the back of his flat. The Accused then returned to his flat and after sometime he came outside and went outside the gate.

[20] Vikash heard the boys from the church alerting them of smoke coming from the Accused’s flat. When they tried to extinguish the fire they found out that there was no water. Vikash said that he saw Asish extinguish the fire. He saw the Accused reto hito his flat and then calling out to his father that someone has lit fire again.

[21] Emori Ligavai’s evidence is that on the 22^nd August 2020 between 10.30 pm and 11 pm, he was present at the billiard shop. He resides opposite the shop in a flat attached to a church. He knows Asish and the Accused well as they have been neighbours for almost 10 years. His house is located about the width of the courtroom away from the Accused’s flat. He said that the Accused was drunk and swearing at Asish.

[22] At about 11 pm, Emori came out of the billiard shop and was standing in front of his house when he saw the Accused pulled his bedroom curtains together and lit it from the bottom using a gas lighter. He said that the bedroom light was turned off but the outside of the house was well lit from the lights coming from the billiard shop. He identified the Accused from an angle and through the main entrance door of the flat.

[23] When Emori saw the curtains were on fire he alerted Asish that the house was on fire. He went and looked for a bucket. When he opened the tap there was no water. He then went and brought the fire extinguisher from inside the house and gave it to Asish. He saw Asish put out the fire with the extinguisher. He denied that he had any animosity towards the Accused.

[24] The final witness for the prosecution was Petero Nodrakoro. Mr Nodrakoro is a fire examiner at the National Fire Authority. His qualifications and expertise as a fire examiner are not in dispute.

[25] After examining the scene on 23 August 2020, Mr Nodrakoro compiled a report which is an agreed document (PE 2). Mr Nodrakoro did not find any electrical fault in the bug structure. He said that there were two points of origin fgin for the fire, one was on the sofa in the sitting room and the other was on top of the radio on the shelf installed beside the drawer and window in the bedroom. He said both fires were introduced and not connected. He said that ashes from an ignited cigarette if accidentally dropped on a sofa or a pile of clothes cannot ignite a fire but an ignited cigarette can, but it would take hours for the fire to ignite.

[26] That is a summary of evidence for the prosecution.

Defence case

[27] The Accused elected to remain silent but call a witness. That is perfectly his right. The fact that he has not given evidence proves nothing, one way or the other. I draw no adverse inference against the Accused for exercising his right to remain silent.

[28] The defence witness was Ishwar Chand, the father of the Accused and Asish. His evidence is that on the night of the incident, the Accused came to his flat to collect his washed clothes. He said that an argument started between the Accused and Asish over parking space for their vehicles. He said that both Asish and the Accused started swearing at each other. After that the Accused went inside his house.

[29] The next thin thing Ishwar Chand saw was that the Accused was calling out from outside the gate to remove the vehicle are was a fire in the house. He said that he saw Asish assault the Accused outside the gate gate and the Accused fell down. He said that after the fire was extinguished he went inside the Accused’s flat. He noticed the fire in the sitting room but not the one in the bedroom.

Analysis

[30] Apart from Emori, no one else saw the Accused lit the fire inside his flat on the night of 22^nd August 2020. Emori identified the Accused inside his bedroom from a distance (about 4 yards) and from an angle through the main entrance door of the house using the lights from outside. The lights inside the house were switched off. Ehough Emori knew the Accu Accused, the circumstances in which he identified the Accused renders the identification unreliable.

[31] I accept Emori to be a credible witness on all aspects of his evidence except his identification of the Accused. I do not accept Emori’s identification of the Accused setting fire to the curtains inside his bedroom using a gas lighter as reliable and credible. I home to this conclusion sion after warning myself of the special need for caution before finding the Accused guilty in reliance on the evidence of identification alone to convict the Accused.

[32] However, the proe prosecution case against the Accused is not substantially dependent on the correctness of identific of him on thon the night of the incident. The prosecution relies upon circumstantial evidence to prove the case against thused.

[33] I accept both the prosecution witnesses and the defence witness havs have given an honest account of the incident. They gave materially a consistent account of the incident. Apart from Emori no one else saw who lit the fire inside the Accused’s flat. But they place the Accused at the scene with a motive. The contradictions and inconsistencies in their evidence are peripheral and does not materially affect their credibility.

[34] It is not in dispute that the Accused was present at the premises when the fire started. I accept the eve of the prhe prosecution witnesses that on 22^nd August 2020 between 10.30 pm and 11 pm, the Accused came home drunk and had an argument with his brother Asish Chand over vehicle pa space. I accept Ishwar Char Chand’s evidence that both Asish and the Accused fought and swore at each other, although the prosecution witnesses gave evidence, suggesting that the Accused was the aggressor.

[35] I accept that the Accused in rage threatened Asish that he was going to do something. I accept that the Accused went and closed the water meter, which is not a disputed fact. I accept that the Accused after closing the water meter went inside his house. I accept that the Accused was the only person present inside his flat at the time.

[36] I accept that the Accused came out of his flat, locked the door, went outside the gate and called out that the house was on fire. I accept that Asish Chand extinguished the fire after someone forcefully opened the door to the Accused’s flat.

[37] I accept that there were two points of origin for the fire, one inside the sitting room and the other inside the bedroom. I accept the findings of the fire examiner that the fires were introduced and not accidental or due to electrical fault.

[38] The onli rational conclusion available from the combined effect of all these established facts is that the Accused is the person who lit the fires inside his flat. He oth opportunity and motive. He had an argument with Asish fish for taking his parking space. When Asish refused to remove his vehicles, the Accused retaliated and warned Asish that he was going to do something. He then went and turned off the water meter. He was the only person inside his flat immediately before the fire started. He came out of the flat, locked the door, went to the roadside and alerted others about the fire. Although the Accused was drunk, but the turning off the water meter immediately before the fire started and the locking of the entrance door of the flat after the furniture was lit shows the conduct was deliberate and intentional.

[39] I feel sure that the Accused wilfully and unlawfully engaged in the conduct of setting fire to the furniture inside the dwelling building belonging to Asish Chand. I feel sure that the Accused’s conduct of setting fire to the furniture inside the house was more than a mere preparation to commit arson.

Verdict
[40] I find the Accused guilty of attempted arson as charged.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Ravinesh Goundar Lawyers for the Accused