State v Prasad [2010] FJMC 106; Criminal Case 362 of 2008 (26 March 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 362/08

BETWEEN

THE STATE

AND

1. JYOTISH PRASAD
2. ATISH PRASAD
   

JUDGEMENT

1. The two accused persons were initially charged with two counts of Assault occasioning actual bodily harm. Later on the 3rd November 2009 the second count was withdrawn by the prosecution. Accordingly the two accused persons are now charged only with the first count of Assault occasioning actual bodily harm.
   
2. The statement of offence and the particulars of offence reads as follows;
   

The statement of offence

Assault Occasioning Actual Bodily Harm: contrary to Section 245 of the Penal Code.

Particulars of offence

Jyotish Prasad s/o Jag Deo and Atish Prasad on the 21st day of October 2007 at Lautoka in the western division assaulted Salesh Vijay Prasad s/o Surend Prasad thereby occasioning him actual bodily harm.

BACK GROUND

3. The two accused person were charged on the 26th May 2008. The first accused is the father of the second accused. The alleged incident has taken place on the 21st October 2007. The case was taken up for hearing on the 24th February 2010.
   
4. The prosecution case was conducted by a police prosecutor and the two accused were unrepresented.
   
5. The prosecution called the complainant Salesh Vijay Prasad, his sister Shobna Latha and the complainant's brother in law, Robert Prasad to give evidence. Apart from that the prosecution called the investigating officer and another police officer. After the closing of the prosecution case the court decided that the prosecution has made out a case which requires the accused to reply.
   
6. The first and the second accused gave sworn evidence and no other witnesses were called for the defence.
   
7. The complainant party and the accused party are close relatives. According to Shobna Latha the first accused is the younger brother of her father. They use the same drive way and the dispute has arisen as a result of some stones being dumped blocking the drive way. The stones are said to be brought for repair of the drive way. On the day of the incident the complainant had been visited by his father, sister and the brother in law.
   
8. The complainant's allegation was that he was assaulted by the first and the second accused. But the position of the accused was that the complainant received injuries by falling down during the scuffle.
   

THE LAW

9. The Section 245 of the Penal Code provides that;
   

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor, and is liable to imprisonment for five years, with or without corporal punishment."

10. In this case there is no dispute regarding the date and the place where the alleged incident took place and the identity of the parties. The prosecution only has to prove beyond reasonable doubt that the first and the second accused have assaulted the complainant occasioning actual bodily harm.
    

ANALYSIS

11. The complainant said that on the 21st October 2007 while he was removing the stones which blocked the drive way the first accused came with a knife and a stick and told him that "I will cut you from knife". He further said then the first accused's wife came and took the knife and the stick but the first accused dragged him from the drive way to the accused's veranda. The complainant said that the first accused bit him on his arm and the second accused came and punched on his left eye. According to the complainant during the scuffle one Ram Chandra came and tried to hit him with a chair and it missed him when he fell down. He said his brother in law and the sister have seen the incident.
    
12. The complainant said that he received injuries on his arm and his left eye was red and swollen. The prosecution tendered a medical report marked as Exhibit 1. According to the medical report of the complainant the description of the injuries are as below.
    
    1. subconjunctival haemorrhage on lateral aspect of left eye
       
    2. bruises ( bite marks) on right arm
       
13. It should be noted that although the accused were unrepresented, the witnesses who were called by the prosecution were extensively cross examined by the second accused. The credibility of the complainant was challenged by the second accused and he brought to the attention of the court a number of contradictions in the complainant's evidence.
    
14. In cases of this nature, specially between parties with long standing animosities there is a risk of producing exaggerated and fabricated evidence. Therefore the court has to consider the credibility of the evidence adduced by the prosecution in determining whether the prosecution has discharged its burden of proof.
    
15. At the same time the court has to be careful assessing evidence in a case which happened 3 years ago. It is very much likely for witnesses to forget what exactly happened specially in a heated up situation. Thus the court has to be extra cautious in analysing evidence according to the circumstances of this case.
    
16. In this case it was so evident that a scuffle had taken place on the 21st October 2007. According to the medical report it is further evident that the complainant has received injuries. The accused have not disputed the medical report and the injuries mentioned in the medical report. The only issue which was disputed during the hearing was how the complainant received the injuries.
    
17. According to the evidence adduced by the prosecution it is very clear that there had been people other than the two accused and the complainant. Although it appears that only the first accused and the complainant were involved at the beginning of the dispute the second accused and other persons seems to have come to the scene subsequently.
    
18. According to the evidence given by the complainant one Ram chand has got involved and has tried to assault with a chair. The wife of the first accused, the mother, the father and the wife of the complainant too have got involved in the scuffle. The complainant said once he fell down with his wife and the mother during this scuffle.
    
19. The sister of the complainant, Shobna Latha said while giving evidence that;
    

"We got a big family there. So every body came. So they kept punching each other."

20. The brother in law of the complainant, Robert Prasad said when he was called to give evidence that;
    

" When we heard the noise we came out. It was happening out side Jotish Prasad's house. There were lot of people. I was a meter or two away. Since there were lot of people I didn't see what was happening. I didn't see any body punching. Just before the Police came I saw Salesh was injured."

21. Therefore it is very clear that other persons have also involved in the scuffle. Then the question the court has to consider is who inflicted the injuries on the complainant if there were persons other than the two accused.
    
22. The complainant said that the first accused bit his arm and the second accused gave a punch on his eye. How ever while the second accused was cross examining the complainant, he suggested that the complainant sustained injuries only when he fell down and not by any assault by the accused. The complainant said in a couple of times that he fell on the ground with others and they were on top of each other. The second accused's contention was if he fell on a concrete floor with others on top of him the complainant should receive injuries as a result of the fall. How ever the complainant denied this position.
    
23. Be that as it may, it has to be noted at this juncture that the evidence of the complainant was full of contradictions. Firstly he contradicted his own evidence and secondly his evidence was contradictory to the evidence of the other prosecution witnesses. When the complainant was cross examined by the second accused it was brought to the attention of the court several times that the complainant has said different facts contradictory to each other at different instances during the cross examination. Once the second accused put to the complainant;
    

"Question: You are not telling the truth. You tell one lie to cover another lie.

Answer: I am telling the truth.

24. The complainant said when the dispute arose there was no one except him and the first accused. He said all his family members were inside his house. However his brother in law said in evidence that when the argument between the first accused and the complainant started he was in the van and later he went inside the house. And he further said when he heard the noise he came out and saw a lot of people. He even said although he was very close to the scuffle he did not see any one punching.
    
25. Although the complainant said that the first accused came with a stick and a knife at the beginning, his brother in law said that he did not see the first accused carrying a knife and a stick. It appears according to this witness's evidence that he had been there when the argument started. But if he was there a doubt arises as to how he did not see the first accused carrying a knife and a stick.
    
26. The sister of the accused, Shobna Latha said that when she went to the scene the complainant was lying down and the first accused was sitting on him. Shobna Latha said that she saw that the first accused was biting the complainant's hand. She further said that since she was pregnant she could not do any thing. However her husband, Robert Prasad said he didn't not see any thing happening. Thus it appears that the evidence of Shobna Latha is contradictory to the evidence of her husband. And once Shobna Latha said that her mother too received a punch but she said that it could be a mistake. This witness being a pregnant lady it is difficult to expect her to see more than what her husband saw. According to the husband it appears that all have come out of the house at the same time. If her husband has only seen a mob and nothing else, the credibility of her evidence is shaken when she says that she saw what happened at the scene.
    
27. It appears that her husband was the only person who had knowledge of the start of the dispute. It is difficult to believe that if the first accused came with a knife and a stick he would just go inside the house and wait there. According to the evidence it appears that both houses are located very close to each other.
    
28. It has to be noted that the evidence given by the three witnesses are contradictory to each other specially in very important aspects. It appears the complainant has given evidence with the only intention of incriminating the first and the second accused. He did not mention that there were other persons involved in the scuffle apart from her mother father and the wife who came to save him. Although the complainant said while giving evidence that his sister and brother in law saw this incident his evidence was not corroborated by the evidence of the two witnesses.
    
29. Although the medical report says that the complainant has received injuries I am not satisfied as to how the complainant sustained injuries. It was clear that the accused too were involved in the scuffle. But the prosecution could not establish beyond reasonable doubt that it was the accused that inflicted the injuries. The accused have created a doubt that the complainant could have received injuries even when he fell down too.
    
30. In these circumstances it appears that the prosecution has failed to present consistent and solid evidence regarding the charge against the two accused. I cannot consider the complainant as a credible witness as he has contradicted his own evidence and the other prosecution witness's evidence. In a case of this nature the court has to be satisfied that the evidence of the prosecution is corroborated by each other. But I am not satisfied that the prosecution has discharged its burden of proof. I decided that the prosecution has failed to prove beyond reasonable doubt that the accused have committed this offence.
    
31. Accordingly I acquit the first and the second accused from the first count.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
26.03.2010.