State v Prasad [2010] FJMC 162; Criminal Case 665.2009 (24 August 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 665 of 2009

STATE

V

KRITESH PRASAD

For Prosecution: Ms. Lomani A. (DPP Office)
For Accused: Mr. Fa T.
Date of Judgment: 24th August 2010

JUDGMENT

1. Accused in this case was charged for one count of "Annoying a Female" an offence punishable under sec. 154 (4) of the Penal Code.
   
2. Three witnesses testified for the prosecution and accused gave evidence on oath. One other witness gave evidence on behalf of the accused.
   
3. According to the particulars of the offence, on 15th April 2009 with intent to annoy the complainant accused had uttered obscene words which offended her modesty.
   

Elements to prove

4. Prosecution at all times under obligation to prove following elements of the charge beyond reasonable doubt. If the prosecution is successful in proving all the elements of the charge accused has an obligation to establish any defence to the satisfaction of the court on the balance of probabilities.
   
   1. The accused
      
   2. Uttered a word,
      
   100. Intended that to be heard by the woman,
        
   4. Intended to insult the modesty of the woman.
      
5. According to the complainant on 15th May 2009, at about 8.30 pm she was at home after work. Suddenly she had heard someone banging her front door. When she opened it, she had seen accused standing in front of the door. Accused was swearing at her in Hindi using words, which are to the meaning of 'prostitute', 'bitch' and 'mother fucker'.
   
6. Complainant said that she had never seen accused prior to that incident. According to the complainant her daughter's wedding was scheduled to be held on 29th May 2009 and on request of her landlord's caretaker, she had written one invitation card to a person named Kritesh Prasad.
   
7. After writing that card she had delivered it to someone who was not the accused on the directions given to her by the landlord's caretaker. While swearing at the complainant, accused had thrown that card at the complainant and had challenged her to come out and fight with her.
   
8. Witness informed that she was frightened and shocked as people in the street and whole neighbourhood were watching. Thereafter, complainant had called her landlord's caretaker on his mobile and when she went to the police she had found accused was drunk. Complainant informed that she was in shock when she reached the police station and later she had been taken to the hospital.
   
9. PW-2 was the officer who had interviewed the accused and informed that the accused had denied the allegation. Witness further informed that during the interview, one of the accused person's friends [Salendra Narayan], was present but he forgot to record the statement of that person.
   
10. Pw-3 was the officer who had charged the accused and informed that the accused had denied the allegation.
    
11. At the end of the prosecution case Accused gave evidence on oath.
    
12. According to the accused he had decided to return the invitation card and went to meet the complainant who was living in same compound with one of his friend named Mohommed Cassim.
    
13. After accused knocked on the complainant's door, it had been opened by the complainant. Accused had said that "aunty, I am sorry, I came to return it" and handed over the invitation card to the complainant.
    
14. At that point accused person's friend was standing behind him and after returning the card both of them have gone to upstairs. While they were going, accused had heard that complainant's daughter was yelling at them calling 'rascal and mean people'.
    
15. Later on that day police officers had come looking for him and arrested him for using abusive language.
    
16. During the cross-examination accused admitted drinking about 03 glasses of beer and police had to sober him up till next day to conduct the caution interview. Accused denied the allegation.
    
17. One Mohommed Cassim gave evidence on behalf of the accused. According to the witness, when they went to return the card he had seen one fair girl and had assumed that she was the daughter of the complainant. Witness confirmed the fact that the girl was calling them rascals and after that both the witness and accused had gone to upstairs to meet one of their friend by the name of Riyaz.
    
18. According to the witness when the accused was arrested he was there with the accused but the police did not record any statement from him. Witness said he later went to the police. According to the witness police had taken the accused to the police with another friend of them.
    
19. According to the witness accused was not drunk and accused did not use any swear words.
    

Analysis of evidence

20. According to the complainant accused had come to her apartment at about 8.30 pm and threw the wedding card at her swearing in Hindi using filthy worlds. People on the street and whole neighbourhood was watching the incident and witness was in a shock.
    
21. According to the accused he went to return the card to the complainant with one of his friend and very politely he had returned it. On his way back to the upstairs he had heard complainant's daughter yelling at them.
    
22. According to the accused person's friend Mohommed, both of them have gone to return the card and later heard complainant's daughter yelling at them.
    
23. According to the interviewing officer, accused had informed him that one Salendra Narayn was present during the incident and that person was present during the interview. However, interviewing officer had failed to record a statement from Salendra Narayan.
    
24. According to the accused, his friend Mohommed was present during the incident but police had refused to record his statement.
    
25. According to the witness Mohommed, after returning the card, both of them went to the Riyaz's flat which was in upstairs. Witness informed to the court that when the accused was arrested, one of their friends went with him to the police but witness did not inform the name of that friend to the Court.
    
26. Accused in his evidence admitted to the fact that he had taken about 03 beers and police had to sober him up till the next day before conducting the interview.
    
27. According to the Mohommed accused was not drunk.
    
28. When the complainant was giving evidence in court not in any time it was suggested to the witness that accused had come to her flat with one of his mate and most importantly it was not put to the complainant that her daughter had yelled at the accused after retuning the wedding invitation card.
    
29. It is difficult to understand as to why such an important fact had not been put to the complainant for clarification by the defence as the accused and his witness gave a considerable weight to that fact whilst they are giving evidence in court.
    
30. Apart from that neither accused nor his witness mentioned the presence of Shalendra Narayan during the incident.
    
31. According to the evidence revealed in Court, Mohommed (witness who gave evidence) and Riyaz were present during the incident. However, none of them have gone to police with the accused when he was arrested and there is no evidence to prove that there were others present during the incident.
    
32. It is established through the accused person's evidence that the accused was under the influence of liquor at the time he visited the complainant and accused could not give any good reason for returning the wedding invitation card.
    
33. If accused wanted to return the card in civilized manner he should not have chose a time when he was under the influence of liquor.
    
34. Moreover, accused person's and his witness's evidence is inconsistence on the above point.
    
35. Considering the above-mentioned facts, I am satisfied that the prosecution had proved all elements of the charge beyond reasonable doubt. Even though accused had brought up a defence, glaring discrepancies in his case made me to disbelieve the accused person's version of the case.
    
36. I find accused guilty as charged and convict accordingly.
    

On this Tuesday the 24th day of August 2010

Kaweendra Nanayakkara
Resident Magistrate