State v Janif [2005] FJMC 8; Criminal Case No 741 of 2003 (22 March 2005)

IN THE FIRST CLASS MAGISTRATES COURT
WESTERN DIVISION AT LAUTOKA

CRIMINAL CASE NO. 741 OF 2003

STATE

V

MOHAMMED JANIF s/oMohamed Hanif

For the Prosecution: Acting Inspector Shaukat Ali
For the Accused: Mr. S. Shah

Date of Hearing: 14/3/05, 15/3/05, 16/3/05
Date of Judgment: 22/3/05

JUDGMENT

The accused is charged with the offence of Act With Intent to Cause Grevious Harm contrary to Section 224(2) of the Penal Code. The particulars of the offence alleged as follows:-

"Mohammed Janif s/o Mohammed Hanif on 17th day of August, 03 at Lautoka in the Western Division with intent to do some grievous harm, unlawfully wounded Dan Saijad Ali s/o Mohammed Umar with a cane knife"

The prosecution bears the burden of proof which is beyond reasonable doubt. In this case the onus is on the prosecution to prove that Dan Saijad Ali (Dan) was greviously harmed and the act causing such harm was accompanied by an intent to maim, disfigure or disable him.

It is not in dispute that on 17/8/03 about 1.30pm there was an incident at Tomuka, Lautoka between the accused and Dan. There is some dispute as to where the incident took place, Dan said that it took place in his brother Hamid’s compound which is opposite accused’s house whilst the accused said it took place in his compound. There is also dispute as to how Dan received injuries. He maintained that he was struck by the accused with a cane knife which resulted in him receiving injuries on head and his hand, whilst the accused denied causing any injury to Dan and he said that Dan was carrying a knife and he swung the knife at him and he got hold of the blade and turned around and this may have caused injuries to Dan.

The accused and Dan were friends and knew each other for about 3 years and their respective wives and children also knew each other. Hamid’s son is married to the accused’s daughter. They had been visiting each other and Dan is a carrier driver and the accused is selling herbal medicine with his wife Rajini Lata (alias Ramiza) and Dan drove the accused and his wife right around Viti Levu for approximately 6 months prior to the incident on 17/8/03. On the 17/8/03 in the day time the accused had a prayer function at his home to which Dan and his wife were invited and as well as accused’s other members of the family. There were several people at the function the exact number is not very clear but were about 70 or so people.

Dan arrived at the prayer session at around 11.00am with his wife and daughter and parked his van in Hamid’s compound and went over to the accused’s house. Two priests (Moulvis) had come to the prayer session and the accused was upset with Moulvi Ibrahim and before the prayer session concluded the accused and Moulvi Ibrahim had some arguments and the accused asked him to leave. Dan said that the accused punched Moulvi Ibrahim whilst the accused denied that and I am not going to make any determination on that issue and suffice it to say that the accused and Moulvi Ibrahim had some dispute. The accused then asked Dan to take Moulvi Ibrahim away and then Dan took him in his van and left him at his house in Vomo Street and after that Dan returned to Tomuka at around 1.30pm.

Upon Dan’s return to Tomuka at around 1.30pm the incident between Dan and the accused took place. The evidence of the prosecution witnesses and the defence is at variance on how the incident took place. It really boils down to the matter of credibility.

Dan (PW1) said as he returned to Tomuka he parked his vehicle in his brother’s compound and as he was locking it he felt that something hit him on his head and he also heard his wife yelling and he was again hit on his head and as he turned around he saw Janif holding a cane knife and he said that he struck him again and as he raised his hands to protect his face the knife struck his index and middle finger on the left hand and also the right hand.

Dan’s wife Farin Farnaz Nisha (PW2 – Farin) evidence is same as Dan on how the accused struck her husband with the knife. The accused said that as he was locking the door of the van he felt something hit him whereas Farin said that she saw the accused came running towards Dan and he was swearing and shouting and this would suggest that Dan would have heard him but Dan has maintained that he only knew that something was wrong when he was struck. In her statement to police she said that he came suddenly and this confirms Dan’s version. As a result of the injuries Dan was bleeding very heavily and his brother Hamid (PW3) tied a sulu around his head and drove him to Lautoka Police Station and later to Lautoka Hospital where he was given general anaesthetic and the wounds were stitched and he was sent home. He was also given medical report (Exhibit P1).

Abdul Hamid (PW 3 - Hamid) did not see the incident – he was inside his house and he only heard noises and when he came out he saw the accused had a knife in his hand and he heard him saying that he was going to kill Dan and he also saw lot of people had gathered and they were holding the accused back.

The accused in his evidence said that Dan parked his van on the entrance to his compound and he said he ran towards Ramiza and he came in between and as Dan swung the knife and he got hold of it and it cut his hands and his shoulder and neck. He said he was unable to say how Dan received the injuries and he further said that Dan told him that he was a karate champion and he hit him on his testicles and he fainted and when he regained consciousness he saw police were present. He said that he only found out after the incident that his wife was having an affair with Dan and he said that only knife was used and he did not carry the knife from home and Dan had brought the knife.

Nasir Hussein (DW 2) version is slightly different to the accused’s version and he said he saw a knife in Dan’s hand and called out to Ramiza and he struck the accused who held the knife and turned around and the knife hit Dan. He was unable to say where the knife hit Dan and then Dan kicked the accused he fainted and he said Hamid took the knife from Dan.

Rajini Lata (Ranju) (DW 3) said she was seated on a sofa she heard her name being called – she looked out through the window and saw it was Dan. She saw 10-15 people running and she saw a knife in Hamid’s hand. She saw Hamid was dragging Dan towards his house and she saw Janif lying on the ground and people carried him to his house where she and the accused’s mother sponged him.

The accused was taken to Lautoka Police Station on 17/8/03 and he was interviewed by PC Bimlesh Naicker . The record of interview was tendered by consent and unfortunately it does not say whether anybody was present – and nor does it state the time the record of interview commenced and the time it concluded. It is unfortunate that police officers fail to complete such important details. The record of interview was tendered by consent as Exhibit P6 and I also notice that the record of interview is signed at the end of page 1 and 4 by the accused and PC Bimlesh and pages 3 and 4 were not signed by either of them. However as I said the record of interview was tendered by consent despite an earlier intimation by Mr S. Shah on 21/5/04 that a trial within a trial would take place. When the trial commenced on 14/3/05 Mr Shah informed the court that he was not pursing with the trial within a trial. PC Bimelsh was not cross-examined on the contents of the record of interview and he said that he did not see any injuries on the accused’s hand and that he was not aware that the accused was medically examined on 18/8/03.

This is a case as I said earlier really boils down to the credibility of the witnesses. There has been lots of instances when the defence has failed to cross examine the witnesses for the prosecution on some very important issues and yet when the accused and his witnesses gave evidence on those matters on which the prosecution witnesses were not called upon to comment. I refer to Cross-examination – Practice and Procedures by James Linday Glissan at page 81 where it stated as follows:-

"Failure to cross-examine

The principle is simple. It is elementary and standard practice to put to each opposing witness so much of one’s own case (or defence) as concerns that witness, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is both unfair and improper to let a witness’s evidence go unchallenged in cross-examination and later argue that he should not be believed. The rule finds its clearest exposition in Browne v Dunn (1893) 6 R 67 in the speech of Lord Halsbury:

My Lords, I have always understood that it you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with the witness.

Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it."

The following are some of the important matters on which the defence failed to cross-examine.

1. The accused said he was struck by Dan with a cane knife and he got hold of the knife and turned around and in the process Dan may have been hurt. This was never put to Dan. The only question on this issue ran as follows:
   

"Q. I put it to you that you struck my client with a knife and he tried to push you from the compound.

A: It’s not true.

2. It was never put to Dan that he may have been hurt with his own knife and further it was not put to Dan that the accused did not strike him with a cane knife although Dan said he was struck three times.
   
3. It was not put to Dan that he kicked the accused on his testicles and he fainted as a result.
   
4. It was not put to Dan that he called Ranju twice and it was also not put to him that he ran towards Ranju and the accused came in between.
   
5. It was suggested to Dan that he was having an affair with Ranju – when Ranju’s evidence is that Dan only had sex once in his house. Despite the denial by Dan it was not put to him that he had sex with her at his house on the night of 16/8/03 at around 11 – 12 midnight.
   

Farin (Dan’s wife PW2)

6. It was not put to Farin that Dan struck the cane knife on the accused, nor was it put to her that the accused got hold of the knife and in the process hurt himself and perhaps hurt Dan as well. Moreover, it was not put to her that the accused never struck Dan with a knife when her evidence is that she witnessed the whole incident and that she saw the accused hit Dan three times with the knife.
   

Abdul Hamid – PW3

7. Hamid’s evidence is that he saw the accused carrying a cane knife. He was not cross-examined on this – nor was it put to him that the accused did not carry a cane knife. It was never suggested to him that he took the knife with him to his house – as evidence of Nasir (DW2) and Ranju (DW3) suggested.
   

PW4 (PC Bimlesh Naicker)

8. The record of interview of the accused was tendered by consent and he was not cross-examined on the contents of the record of interview but when the accused gave evidence he said PC Bimlesh made up the answers and also that he lied in respect of some of the answers. If the accused was disputing some answers then he should have put those to PC Bimlesh.
   

The accused embarked on a mission to cloud the issues and failed to address the main issues of how Dan received the injuries. The accused and his witnesses spent a lot of time giving evidence on matters which was not relevant to the issues and they left a distinct impression that they had rehearsed about the evidence and DW2 in particular was extremely selective in his evidence and when pressed upon in his cross-examination he became extremely agitated.

The accused obtained a medical report from Lautoka hospital dated 18/8/03. The brief history related by the accused to the doctor was that he was struck by a distant relative after an argument over his wife. The doctor found the following injuries:

• Cut left thumb medially
  
• Cut index finger
  
• Cut right index/middle
  
• Scratch left neck
  
• Scalp
  

In item No 13 (v) which reads clothing (condition of tear, stain the doctor has put nil. The evidence of the accused was that he did not have any blood stains on his shirt as he changed his shirt whilst Ranju’s evidence is that there were blood stain on his shirt and the doctor probably did not see it as the accused was seated. I do not know how the accused received the injuries on his fingers. Was it self inflicted? PC Bimlesh was quite adamant that he did not see any injuries on his fingers. I find as a matter of fact that the accused did not have any injuries on his hands when he came to Lautoka Police Station on 17/8/03 and when he left the police station on 18/8/03. The accused said that Dan kicked him on his testicles and as a result he got knocked out. If he was indeed kicked then it must have been a very severe blow and yet the accused did not tell the doctor about it.

The accused suggested that Dan and his wife took Ranju with them is not correct. He said that when he returned home on 16/8/03 his daughter whose age he described as 5 years and Ranju described her as 7 years old told him that Ranju had left home. He then went around asking about Ranju. His daughter was old enough in my view to have told him that Dan and his wife had taken Ranju and she did not tell him because they did not take her. Ranju went to Dan’s house on her own.

On the other hand the witnesses for the prosecution gave evidence freely and confidently. Dan’s wife gave evidence on the striking of the knife very confidently and I find that she was not honest when she said that she did not know about Dan’s children from his previous marriage.

For the reasons given above I accept the evidence of the prosecution witnesses and reject the evidence of the accused and his witnesses I therefore find that the prosecution has proved its case beyond all reasonable doubt on the charge of Act with intent to cause grievous bodily harm and I find that the accused is guilty of the charge and I convict him of the charge.

Mohammed.S. Khan
Resident Magistrate

22/03/05