IN THE RESIDENT MAGISTRATE COURT
AT SUVA

Criminal Case No. 2015/97

STATE

V

SAMISONI NAQICA

JUDGMENT

The accused has been charged with assault occasioning actual bodily harm contrary to Section 245 of the Penal Code in that on 26 November, 1996, at Suva he assaulted Dharmend Singh s/o Tribhuwan Singh thereby occasioning him actual bodily harm. The accused pleaded not guilty.

Pw1 said the complainant in this case came along to him on the day in question and was examined by him and issued a medical report. He tendered his Medical Report as Exhibit 1. During the cross examination he said there was a fresh contusion which was probably caused an hour ago. He also said contusion could be the result of a blunt object.

PW2 said on the day in question around 1 p.m. he was discharging a passenger at Rodwell Road and this accused and an Indian police officer came in a police van and the Indian police officer charged him for illegal operation, that the Indian police officer and this accused both swore at him and then he drove towards SPR Shop and the two police officer followed him and there the accused punched him, that he went to the Central Police Station to report but as he was at the counter to report the accused came and held him back of his trousers and took him to the Officer-in-Charge Traffic. PW1 further said the accused told them to suspend his taxi and one officers from the Board came, that this accused told them to suspend his taxi and one officer from the Transport Control Board tested his taxi and said brake was defective and that after that he went back to the first counter and reported the incident of assault and injuries. During the cross-examination PW1 said he did not tell Cpl. Nitya that the he was assaulted at Rodwell Road, that near SPR both police officers came out from the police vehicle and the accused came nearer to him while the other was about one and half feet away and PW1 was still in the driver’s seat, that the accused punched on the right side of his face and the Indian police officer saw the punching take place, that immediately after the assault he drove away and went inside the Central Police Station and went to the front desk and was still lodging his complaint and at that time this accused came and dragged him to the Traffic Section. Further he said at the Traffic Section this accused forced him to go to that Section and he booked him with four traffic charges. He also said after reporting the assault incident he went back to the Traffic Section with a Sgt "to settle it with this accused" and he (PW2) did not suggest to withdraw his allegation of assault if the traffic charges against him would be dropped by the police. PW2 also said he reported against Cbl Umesh because the Cbl Umesh had harassed his wife by asking unnecessary questions.

PW3 said that on the day in question he saw this accused punching PW2, that the PW2 was taking a job when the assault incident took place, that the police asked the taxi driver to stop and once the taxi driver stopped the accused started punching him. During the cross examination this witness said he did not wear a watch that time and he was after lunch, that the accused pulled PW2 and that he knew PW2 for over a year and did not make up this story against the accused.

PW4 said he was the duty officer on 26/11/96 and around 1 p.m. the PW2 entered the charge room from the back door and was talking louder and saw his hair scattered all over but did not see any injuries. During the cross examination too he said that he did not see any injuries on PW2. During re examination he also said PW2 did not come back thereafter.

PW5 said he interviewed the accused and the accused made a voluntary statement. During the cross examination he said the assault took place at Asar Street.

PW6 said he recorded the charge statement and according to this charge statement the allegation is that the accused punched the complainant at Rodwell Road. During the cross examination PW6 said Rodwell Road had been referred to as the place of the assault. Further he said ASP Arjun Singh gave instruction to charge the accused and charging took place at Lautoka Police Station but he did not have the police docket with him when he charged the accused.

That is the prosecution case.

The accused gave evidence. He called two witnesses also to give evidence on his behalf. In his evidence he said he did not assault PW2. He tendered a sketch plan of the place of alleged assault incident and said that a person standing in front of "Yoyo Foot Wear" cannot see the point of the incident. During the cross examination the accused said he did not argue with PW2 but complainant argued with him. He also said he was about to book PW2 but he left the scene. He said he did not see any injuries on PW2 at all at any stage and that he did not punch PW2.

DW2 said he was on duty with the accused on the day in question and they stopped PW2 at Asar Street. He also said he was aware of the complainant made by PW2 but did not see any assault taking place. In short he said the accused never assaulted the complainant in this case and he gave a statement to the Police on this allegation but he was not called by the prosecution. During the cross examination DW2 said they could not book PW2 in the first instance because the complainant moved out of the place. He also said he was very lose to the complainant on the second stop.

DW3 said he too was in the police vehicle with the accused and DW2. He said they stopped their vehicle at Asar Street but the accused did not assault the complainant at any stage. During the cross examination he said he saw the PW1 had stopped his taxi incorrectly and while the police team was still question him he moved away and took off. He admitted that he knew the accused for about four or five years but to no assault took place in his presence. That is the defence case.

I have now considered the evidence before me and the written submissions of both sides. I am satisfied that the police party PW2 had stopped his taxi incorrectly and when they questioned, PW2 without answering them in a satisfactory manner he had moved away and took off. Then the police party had followed him and near SPR shop while PW1 was trying to part the taxi he had been questioned by the police, particularly by the accused. The allegation is that the incident of assault took place here around 1.00pm. According to the witnesses called by the prosecution no one has seen the accused assault PW2. I can understand that prosecution witnesses being police officers giving evidence in favour of their colleague. The other witness called by the prosecution called by the prosecution on the other hand is a colleague of PW2 namely the complainant. When I look at the medical report tendered by PW1, the PW2 has been examined at 6.30p.m. If the assault incident took place around 1.00 – 2.00p.m. in the ordinary cause of event the patient would rush to the hospital immediately. The medical certificate also shows that the history as related by patient is simply "assaulted". It is in evidence before the Court that PW2 had some officers at the Central Police Station known to him before the incident. Further, I could see that some misunderstanding in the mind of PW2 with the police was there in connection with some harassment of his wife. In so far as the place of assault is concerned I find some discrepancy. PW2 says it happened at Asar Street but PW6 says according to their records it happened at Rodwell Street. I also see that while PW2 says that he stopped his taxi at or near SPR shop because there was space for parking. PW3 says PW2 was taking a passenger. If there was a passenger in the taxi or about to get into the taxi he would have seen the incident. There is no none before the Court as such. It is difficult to believe the PW2’s statement that the accused approached him while he was at the police counter in Central Police Station making a formal complain against the latter the accused dragged him by his trousers and took him to traffic office because I do not believe such disorderly manner of conducting routine police matters at the Central Police Station exist. 

When I consider evidence for the defence I am inclined to believe what they say more what the prosecution witnesses say. As a matter of fact some prosecution witnesses themselves have given conflicting evidence against the prosecution case. Thus it is difficult for me to hold that the prosecution has proved his case beyond reasonable doubt against the accused although there is a medical report. In this medical report itself PW2 has not told the doctor that he was assaulted by the accused or for that matter at least by a police officer. My analysis of evidence as a whole brings out many aspects of doubts in favour of the accused and by giving the benefit of doubt to the accused. I now acquit this accused.

(J Illangasinghe)
RESIDENT MAGISTRATE