State v Prasad [2002] FJMC 1; Criminal Case No 3449 of 2001 (11 January 2002)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 3449 of 2001

STATE

-v-

BHAWANI PRASAD

s/o BRIJ MANGAL

BEFORE S TEMO ESQ
RESIDENT MAGISTRATE

11 January 2002

For Prosecution: B Solanki
Accused: present
For Accused: Mr Tevita Fa

JUDGMENT

The accused was charged with “threatening violence” contrary to Section 103 of the Penal Code, Chapter 17, and “damaging property”, contrary to Section 324(1) of the Penal Code. He pleaded not guilty to the charges.

On Count No. 1, the particulars of offence were as follows: “BHAWANI PRASAD s/o BRIJ MANGAL, on the 28th day of October, 2001 at Nasinu in the Central Division with intent to alarm UMESH MANI s/o YENKAT SAMI, SHILA BELAS and BALAMMA d/o NAGAIYA REDDY in dwelling house used threatening words and behaviour”.

On Count No. 2, the particulars of offence were as follows: “BHAWANI PRASAD s/o BRIJ MANGAL AND OTHERS, on the 28th day of October, 2001 at Nasinu in the Central Division, willfully and unlawfully damaged door glass valued at $50.00 the property of SATYA DEO and 5 potted plants valued $50.00 the property of UMESH MANI s/o YENKAT SAMI”.

As always in Criminal trials, the burden is on the prosecution to prove the accused’s guilt beyond reasonable doubt. That burden stays with the prosecution, throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. If, after all the evidence have been examined, a reasonable doubt as to the accused’s guilt remains, he is entitled to an acquittal forthwith.

In this case, the prosecution called 11 witnesses – 6 civilians and 5 police officers. A prime facie case was found against the accused, and the requirements of Section 211 of the Criminal Procedure Code were compiled with. The accused chose to give evidence, on oath. Altogether, there were 12 witnesses – 11 for the prosecution and the accused himself – on whose evidence, the Court will have to make a decision.

The State’s case was pretty straight forward. They alleged that the accused, on the 28^th day of October, 2001 at Nasinu in the Central Division, uttered threatening swear words at Umesh Mani, his wife, and mother. It was also alleged that, the accused held out a knife, at the same time, and threatened Umesh Mani, his wife and mother.

The State further alleged that, the accused, after doing the above, went on to break Umesh’s glass door, and kick and damaged his 5 pot plants. The damage to the glass door valued at $50.00, and that to the pot plants, was also $50.00.

The accused, in his sworn evidence, denied the above allegations.

Has the prosecution proven the accused’s guilt beyond reasonable doubt?

I have carefully listened to the 11 prosecution witnesses in the Courtroom. I have also carefully listened to the accused in the Courtroom. I have carefully observed all the witness’s demeanour in the Courtroom, I have read and re-read their evidence.

The State’s case will stand or fall on whether or not Umesh Mani’s evidence is to be accepted. In my view, after carefully listening to his evidence and observing his demeanour in the Courtroom, I must state at the outset that, I find Umesh Mani not to be a credible witness.

My reasons were as follows:

He said that, on 28^th October, 2001, after 9.00 p.m. he drank 2 bottles of beer with his friend. The accused was his next door neighbour. A partition wall separated their unit from another. Umesh said he later told his mother, Balamma, that the accused (a police inspector) put him in the Valelevu Police Staion Cell, on 23 June 2001. He later alleged that the accused was banging the wall and swearing at him, a few seconds later.

Umesh was not very forthcoming on why he was put in the police cell by the accused, on 23 June 2001. It took Pw10 (ASP Emosi Baleinuku), while been cross-examined by Defense Counsel, to explain to the Court the reasons of why Umesh Mani, was put in the Valelevu Police Cell, on 23^rd June 2001. PW10 said, “... I was aware that the accused lodged a complaint against Umesh on 23/6/01 to Valelevu Police Station. The complainant involved Umesh suggesting sex to the accused’s wife. Nothing has been done about the complaint...”

The reluctance of Umesh to tell the Court of the reasons of why he was put in the Valelevu Police Cell on 23/6/01, spoke volumes of his character. It depicts of a person who is only willing to present a one-sided view to the Court.

PW10, ASP Emosi, the police investigation officer, admitted on oath that, “there was bad blood between the accused and Umesh”, as a result of the 23/6/01 incident. In my view, it was this “bad blood” between the two that caused the alleged incident that occurred, on 28^th October 2001.

Why Umesh has to bring up the 23/06/01 incident to his mother, Balamma, on 28^th October 2001, after drinking beer puzzled the Court. It also puzzled the Court that, after relating the 23/06/01 incident to Balamma, Umesh alleged that the accused was banging on their partitioning wall. No one in their right mind would react in the way Umesh alleged, unless they were severely provoked. Logic says so. In my view, Umesh deliberately provoked what he alleged against the accused, to spite him because of the 23/06/01 incident. This again explains the type of character Umesh is. In my view, he is nothing but a troublemaker.

Even PW8 (Police Officer Setareki) said that, he had to lock Umesh up in his own house, on 28^th October 2001, to control him. PW8 was the first police officer directed to the scene, to investigate a complaint, initiated by the accused. This fact again spoke volumes about Umesh’s character. It was not Umesh who called for the police. It was the accused who initially sought police assistance. Why would the accused seek police assistance, if he was allegedly in the wrong.

Furthermore, when PW8 was cross-examined by Defence’s Counsel, he said “he wanted to stop Umesh from going to the accused’s house”. PW8 further said that “Umesh’s mother and wife asked him to control Umesh. Umesh was very drunk”. These were the comments of the first police officer, sent to the crime scene, at the material time. It again depicts very clearly, the kind of character Umesh is, i.e. he’s volatile and drunk at the material time.

PW8’s evidence revealing Umesh’s mother’s and Umesh’s wife’s request for PW8’s assistance to contain Umesh, at the material time, leaves no alternative to this Court, but to treat Umesh’s mother’s and Umesh’s wife’s evidence with suspect. When Umesh’s mother and Umesh’s wife were giving evidence in Court, they had nothing bad to say about Umesh. However, through PW8 (a police officer), the mother and wife revealed Umesh’s volatile character.

The accused, on the other hand, is a credible witness. He is a Police Officer of 32 years standing. He spent half of that time prosecuting in the prosecution office. At present, he is an Inspector and a very Senior Police Prosecutor. He choose to give sworn evidence, in his defence. He denied the allegations against him on oath. He did the same, in his police caution interview and charge statements, dated 31^st October 2001. He said Umesh fabricated his evidence. He said Umesh is a habitual drunk and creates problems at his home everyday. He said Umesh creates problems for his family everyday. He said Umesh swore at him and his family. In a nutshell, the accused said Umesh had made their family life a misery. He said that Umesh threatened him that he will ensure that the accused loose his job as a result of this trial.

Having carefully examined the evidence of Umesh and the accused, and having carefully observed their demeanours in the Courtroom, I accept the accused’s evidence, and reject Umesh’s evidence. I also reject the evidence of Pw2, PW3, PW4, PW5 and PW6 – the civilian witnesses relied on by the State, to corroborate Umesh’s evidence. In my view, I accept the accused’s evidence that the civilian witnesses are Umesh’s relative and friends and are colluding in propagating Umesh’s untruth. As to the police witnesses, I accept the accused’s denial contained in the caution interview statement and charge statement.

Given the above, I find the prosecution has not proven its case against the accused beyond reasonable doubt, and I find the accused not guilty on Count No. 12. I dismiss the charges and acquit him accordingly on both Counts.

Salesi Temo

Resident Magistrate

11^th January, 2002