State v Singh [2010] FJMC 118; Traffic Case 3170 of 2009 (9 September 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 3170/09

BETWEEN

THE STATE

AND

RAJENDRA SINGH

JUDGEMENT

1. The accused is charged for operating a public service vehicle contrary to conditions of public service vehicle permit.
   
2. The statement of offence and particulars of offence are as follows;
   

Statement of offence

Operating a public service vehicle contrary to the condition of a public service vehicle permit.

Particulars of offence

Rajendra Singh on the 9th day of September 2009 at Lautoka in the Western Division being the driver of vehicle number BJ 370 at Naviti Street in respect of that vehicle by not issuing ticket to the passengers in exchange of the fare paid for the journey.

3. The accused was booked by a LTA officer on the 09th September 2009 and was charged on the 03rd November 2009. The case was taken up for hearing on the 19th July 2010. The prosecution called only one witness and after the prosecution case was closed the court held that there is a case for the accused to reply. The accused gave evidence and called one defence witness.
   
4. Section 65(4) says that a person who operates or permits to be operated a public service vehicle without or contrary to the conditions of a public service permit issued under this section commits an offence and is liable on conviction to the prescribed penalty.
   
5. In this case the prosecution has to prove the following ingredients to secure a conviction;
   
   1. the date and place of the alleged incident.
      
   2. the identity of the accused.
      
   3. the accused did not issue tickets to passengers in exchange of the bus fare.
      
   4. the accused violated a condition of the public service vehicle permit by doing so.
      
6. The prosecution called Ponipate Turelau, a road safety officer to give evidence. He said that on the 09.09.09 he was checking for bus tickets. He said that they have received complaints form the public that bus drivers don't issue tickets to them. He said on that day they stopped a bus registration number BJ 370 at Naviti Street Lautoka. He identified the accused as the driver who drew the bus.
   
7. The witness said there were 20 passengers in the bus. He said another officer entered the bus and inquired from the driver whether he issued tickets. The witness said that he interviewed a passenger by the side of the bus. He said he did not speak with the driver. He said that he interviewed about two passengers. The witness said he asked them whether tickets were issued and the passengers answered in negative. The witness said then he served with a TIN to the driver for failure to issue tickets.
   
8. The accused cross examined the witness and asked whether those two passengers will be called to give evidence. The witness said that he can not recognize their faces or names now.
   
9. The accused gave evidence and said that the officer who gave evidence didn't come to the bus. Further he said there were only 7 passengers in the bus. He said when tickets are issued, passengers don't keep them and just throw them away. He said the officer who gave evidence did not interview the passengers and it was another officer who interviewed them. The accused tendered the statement of the officer who gave evidence as A-1.
   
10. It appears that the statement of the officer and the evidence he gave in court has contradictions. According to the statement he has stated that he inquired form the driver. But while giving evidence he said that he did not speak to the driver. Also he had said in the statement that he boarded the bus. But in evidence he said that he did not get in to the bus.
    
11. The accused did not dispute the date and place of the alleged incident. Further the identity of the accused was also not disputed by the defence. Thus I am satisfied that the prosecution proved those elements beyond reasonable doubt.
    
12. The accused denied the allegation, that he did not issue the tickets. His position was that although he issue the tickets, passengers don't keep them. How ever he challenged the evidence given by the prosecution witness. He tendered the statement of the prosecution witness to show that the evidence he gave is contrary to the statement made by him. I have considered the contradictions in the statement and the evidence given. It should be noted that it is the duty of the prosecution to tender cogent and consistent evidence in cases to prove the guilt of an accused. The prosecution can not secure a conviction when they fail to do so.
    
13. It should be noted that the prosecution did not call any other witnesses apart from the officer who gave evidence. It has to be considered carefully whether the evidence gave by the prosecution witness regarding non issuance of tickets amounts to hearsay evidence. The prosecution did not call any passenger who travelled in the bus on that particular date. The prosecution witness only said that he was told by two passengers that they were not issued tickets. There was no other evidence which suggested that the accused failed to issue tickets. I do not think that the court can act on evidence of this nature. It is clearly discernible that the only incriminatory evidence produced by the prosecution is nothing more than hearsay evidence.
    
14. If the prosecution wants to prove a case beyond reasonable doubt they have to produce strong and admissible evidence. On the other hand it was seen that the credibility of the prosecution evidence was also challenged by the accused. In the circumstances I am not satisfied that the prosecution was able to prove that the accused did not issue tickets to the passengers.
    
15. In the circumstances I decide to acquit the accused from the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
09.09.2010