State v Sharma [2005] FJMC 6; Criminal Case No 2452 of 2003 (28 February 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2452 of 2003

STATE

V

DIVENDRA DEO SHARMA s/o Gyan Deo Sharma

Prosecution: Inspector Epeli
Accused: Mr D Sharma

JUDGMENT

The accused has been charged with two counts namely Assault Occasioning Actual Bodily harm (S245) and for Damaging Property. (S324 (1) of the Penal Code.)

The defendant; has denied both charges.

PROSECUTION FACTS

On 15/10/03 the complainant then aged 15 years was a tenant of the accused. The complainant with his mother were vacating the premises and went to remove house hold items. He was told by the accused to obtain police assistance as the premises was under distress.

The complainant was called into the house of accused on the pretence that there was a police phone call and they wished to speak to complainant. When complainant entered the house there was no calls. Accused brother got hold of the complainant and the accused slapped him and banged complainant’s heard against the wall. His shirt was also torn valued $7.00 (Exhibit 2). On release the complainant reported the matter to police. He was medically examined (Exhibit 1). His report showed injuries. The accused was interviewed under caution who denied assaulting. He reserved his right to answer questions and refused to sign the interview.

DEFENCE CASE

The accused denied the assault. He said he was not there at the time and on 14/10 there was a confrontation between his brother and wife and the complainant where the complainant would have injured. He refused to accept the interview as his as it was not signed by him.

He said on 15/10 the complainant came to his house in the morning. Accused told him to get police assistance to remove his belongings. He said he was drinking grog with his two friends around 2 pm. Accused came again. He denied he assaulted him. He said he usually helped complainant and mother as they were poor.

Accused called 2 witnesses. Both were his good friends and drinking mates. One was also his brother.

ANALYSIS OF EVIDENCE

I have considered whole of the evidence before court.

Complainant’s evidence has support in material particulars. He went on 15/10 whilst accused was inside kitchen and others grogged. DW2 confessed accused was inside kitchen. The medical report is consistent with injury behind head and caused by blunt and blows. I have also seen the demeanor of all witnesses in the box. The accused and his two witnesses were close friends and drinking mates. He called his brother and his bailiff who levied distress on accused’s behalf. I found their evidence to be well rehearsed narrated in court in a parrot fashion. They only came to help the ‘pundit’ landlord who was a mate. Also one defence witness was inside the courtroom throughout the prosecution case. I have considered their evidence against that of the complainant and the police officer. I give the defence witness evidence very little weight. I do not find any assault took place on 14/10.03. It is a fact that the accused was called inside the accused’s house and assaulted as described by the complainant. His exhibits in court are consistent with his injury and damage.

The accused appeared to be over talkative and trying to confuse the real issues in court when asked specific questions. He reserved his right to talk in court and when called to the station by PW2 Const. Sanjana. The accused had lost his temper and swore at her. He also said he was very helpful to the complainant and mother as they were poor. However, this is difficult to believe when he seized their belonging and levied distress preventing them from moving out.

I have considered all points raised by the defence but reject it as not credible. I find the prosecution ahs proved its case beyond reasonable doubt. The accused is found guilty as charged on both the counts.

Dated this 28th d ay of February 2005.

Ajmal Gulab Khan
RESIDENT MAGISTRATE