State v Lalagavesi [2010] FJMC 47; Criminal Case 60 of 2010 (5 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case: No 60/10

BETWEEN

THE STATE

AND

SAULA LALAGAVESI

JUDGEMENT

1. The accused is charged with one count of assaulting police officer in the due execution of his duty and one count of escaping from lawful custody.
   
2. The statements of offence and particulars of facts are as follows;
   

The statement of facts of the first count

Assaulting police officer in the due execution of his duty: contrary to Section 247(b) of the Penal Code.

Particulars of offence

Saula Lalagavesi on the 25th day of January 2010 at Lautoka in the Western Division assaulted Police Constable No 2598 Parmendra Singh in due execution of his duty.

The statement of facts of the second count

Escaping from lawful custody: contrary yo Section 138 of the Penal Code.

Particulars of offence

Saula Lalagavesi on the 25th day of January 2010 at Lautoka in the Western Division whilst in the lawful custody of Police Constable No 2598 Parmendra Singh escaped from such custody.

BACK GROUND

3. The accused had been remanded on the 25th day of January 2010 by the High Court of Lautoka in a Robbery with violence case when the accused came to cancel his bench warrant. The accused escaped from custody on the same day and was later arrested for allegedly assaulting a Police officer and for escaping from lawful custody.
   
4. The accused was charged on the 28th January 2010. The case was taken up for hearing on the 13th March 2010. The accused was unrepresented and the prosecution was conducted by a State counsel.
   
5. The Prosecution called P.C. 2598 Parmendra Singh, Cpl 2708 Elia Waqaisoqo and PC 3855 Setereki Nabeqa. After the prosecution case the court decided that the prosecution has made out a case which sufficiently requires the accused to reply. The accused was explained his right to give sworn evidence or to call witnesses. The accused opted to remain silent.
   

THE LAW

6. The Section 247(b) of the Penal Code provides that;
   

"Any person who assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer is guilty of a misdemeanour, and is liable to imprisonment for five years."

7. The Section 138 of the Penal Code provides that;
   

Any person who, being in lawful custody, escapes from such custody, is guilty of a misdemeanour

8. According to Section 47 of the Penal Code, when no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both.
   

ANALYSIS

9. It should be noted at the very out set that the accused did not dispute the fact that he escaped from lawful custody. The only contention of the accused was that he did not assault the police officer and that the police officer let him go after taking some money from him.
   
10. Before dealing with the first count of assaulting a police officer in the due execution of his duty, I prefer to deal with the second count of escaping from lawful custody.
    
11. As far as the second count is concerned the court has to ascertain only whether the prosecution has proved beyond reasonable doubt that the accused was in lawful custody and secondly whether the accused escaped from that lawful custody.
    
12. According to evidence led by the prosecution, it appears that on the 25th January 2010 the accused had appeared in the High Court, Lautoka to cancel a Bench warrant in a case against him. Then he had been remanded by the High Court. Subsequently he escaped when he was kept in custody of the Court orderly to be handed over to the remand prison. He had been later arrested on the 27th January 2010.
    
13. When a court of law makes an order to remand an accused person in custody such accused is restrained from going back to the society unless and until the court orders otherwise. From the time an accused is ordered to be remanded in custody, to the moment the accused is released on bail or otherwise such accused is considered to be in lawful custody. It is immaterial under whose physical custody the accused is kept during this process as long as the order of the court is complied with. Therefore it is very clear that from the time the accused in this case was remanded in custody he had been in lawful custody of the court orderly.
    
14. The accused did not dispute the fact that he escaped. The witnesses called by the prosecution corroborated the fact that the accused escaped and he was later arrested at his residence. The accused too admitted that he was later arrested by the Police.
    
15. The accused position was that he was asked 200 dollars by the orderly of the High Court to release him. The accused said that he gave 150 dollars to the police officer and he was allowed to go. He further said that the Police officer told him that he will call the police after 3 minutes of his escape. Even if the court believes the accused's version, it is crystal clear that the accused very well aware that he was going to escape from lawful custody in an illegal manner. The accused did not say that he was under the wrong impression that he is free to go. It is immaterial who or what instigated him to escape from custody. Specially as an accused who has several cases against him can be presumed to be aware of the consequential issues of being remanded in custody.
    
16. But it appears that the accused in this case has knowingly escaped from lawful custody according to the evidence of the prosecution. Even according to the accused's position he has used an illegal means to escape from custody.
    
17. I am satisfied that the prosecution has discharged the burden of proving that the accused was in lawful custody and that he escaped from lawful custody. Thus I find him guilty of the second count.
    
18. Now I will proceed to deal with the first count of assaulting a police officer in the due execution of his duty. The prosecution witness Parmendra Singh said that he was the orderly of the High court on the 25th January 2010. He said that there were no other officers to take the accused in to custody and he had to keep the accused in his custody after he was remanded by the High Court. He further said that the accused have requested several times to go to the wash room and finally when he took the accused, he had punched him and had run away. He said that the accused punched him on his chest and he was going to fall down and he stumbled. He also said although he gave the accused a chase he could not arrest him.
    
19. The accused denied this evidence and the accused's position was that Parmendra Singh let him run away after taking 150 dollars from him. During the cross examination of the prosecution witnesses the accused put forward his position. Yet there was no other independent evidence to corroborate the accused's contention. At least the accused did not give evidence in this case to support his claim.
    
20. On the other hand the prosecution tendered a medical report to corroborate the assault on the Police officer. According to the medical report the medical examination had been done on the 25th January 2010 at about 3.45 pm. The medical report describes the medical findings as "tenderness in the central part of upper chest region." The conclusion of the medical report says "blunt force trauma."
    
21. Thus it is clearly discernible that the Police officer, Parmendra Singh had received injuries and he had been examined by a medical officer few hours after the incident. Prosecution did not led evidence of any eye witness to the scene. According to Parmendra Singh there had been only few ladies and it does not seem that there was an attempt to make them witnesses. Although the prosecution failed to produce any independent eye witnesses it should be noted that the medical report provides sufficient corroboration regarding the assault. On the other hand the evidence given by the Court orderly, Parmendra Singh was quite convincing and the accused was not able to challenge the credibility of his evidence.
    
22. In the circumstances I am convinced that the accused had assaulted the police officer in the due execution of his duty. Thus I decide that the prosecution has proved the first count beyond reasonable doubt and find the accused guilty of the first count.
    
23. Accordingly I convict the accused for the first and the second counts.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
05.05.2010