State v Dutt [2010] FJMC 89; Criminal Case 184 of 2009 (27 May 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT TAILEVU
FIJI ISLANDS

Criminal Case No: 184 of 2009

STATE

V

GEETA DUTT

For Prosecution : Inspector Ali
Accused : Present

JUDGMENT

The accused, Geeta Dutt is charged with Assault Ocassioning Actual Bodily Harm, contrary to Section 245 of the Penal Code (Cap 17).

It is alleged that Geeta Dutt on the 6th day of November 2009 at Nabilo, Tailevu in the Central Division assaulted Joytika Prasad, thereby occasioning her actual bodily harm.

The prosecution called 4 witnesses to prove its case against the accused. The burden of proving the said case is upon the prosecution and the standard of proof is beyond reasonable doubt.

The elements of the offence that the prosecution needed to prove beyond reasonable doubt were:

(a) That it was Geeta Dutt, the accused,

(b) who on the 6th day of November 2009,

(c) at Nabilo, Tailevu,

(d) assaulted Joytika Prasad,

(e) occasioning her actual bodily harm.

The prosecution has the burden to proving each of the above mentioned elements of the offence of Assault Ocassioning Actual Bodily Harm, contrary to Section 245 of the Penal Code that the accused has been charged with.

Facts not in dispute
The accused and the prosecution led evidence as to the date of the alleged offence, 6th day of November 2009 and the venue of alleged incident, which is Nabilo, Tailevu. The Court therefore accepts that there is no dispute as to these elements of the offence.

Facts in dispute
The facts that are in dispute in this case are that the accused, Geeta Dutt assaulted Joytika Prasad occasioning her actual bodily harm

The Evidence
The prosecution called 4 witnesses. The first prosecution witness was the complainant, Joytika Prasad - (PW1). The complainant's material evidence in was that she recalled 6th November 2009 at 5pm. She was at home. Initially, some incident at their compound. Later in front of Geeta Dutts house she asked Geeta Dutt why he sent Fijian boys to her place. Geeta Dutt pushed her, she fell Geeta Dutt pushed her shoulder. She fell on the ground. Her mother, and sister in-law were with her. The complainant pointed out Geeta Dutt in Court as the one who pushed her that day. She was medically examined that afternoon at Korovou hospital. Medical report was tendered in Court.

Upon cross examination by the accused, the complainant told the Court that she was not lying. Roshni Devi hit the stone when the accused pushed her. It landed on the accused. The accused pushed her. The accused asked the complainant why she pulled his t/shirt? She responded that she did not pull the accused's t/shirt. She did not go into accused's compound.
PW-2 was Sarita Prasad whose material evidence was that recalled 6/11/09. She was inside the house, but when she heard noise on the road she came out. Geeta Dutt and her son were fighting. She went to stop the fight, Geeta Dutt and his wife pushed her daughter. She ran to the scene. The accused pushed complainants shoulder with open palm. Due to that Joytika fell and received injuries. It was Geeta Dutt who did that. She pointed out the accused as Geeta Dutt.

Upon cross examination by the accused, PW-2 told the Court, that her daughter and son asked him why he brought 4 fijian boys to assault Yogesh.

PW-3 was Sgt Chetty and Pw-4 was Constable Sanjay.
The accused, Geeta Dutt in his defence gave sworn evidence and stated that what happened with him was wrong. He was entrapped. They were in his compound and assaulted him and he was charged.

In cross examination the accused told the Court that he knows that the complainant has a medical report. He cannot recall the victim receiving any injuries to her knees. She might have received injuries when Fijian boys were fighting. He saw the fighting in the compound. He was cleaning his car. Victim tried to save- it was a gravel compound. He did not touch the complainant. His t/shirt was torn.

Before the Court could call the next witness for the accused the Court noted that a couple of police officers (Pw-3 and Pw4) who had given evidence for the prosecution were talking with some defence witness. The prosecution witnesses and the defence witnesses had prior to commencement of hearing been asked to move to the back of the court so that any evidence given in the witness box would not be heard by witnesses who would be called later on. The Court wishes to express its grave concern at the behavior of the police officers and the witnesses who were hiding behind the Court doors and listening despite being warned to move to the back of the building. The 2nd defence witness was hiding behind listening to what the accused was saying before she came in to give evidence. The police officers (Pw-3 and Pw4) were with her. Such behavior of Police Officers who know Court procedures well is deplored. The court does not expect prosecution witnesses, in this case Police Officers to mingle and discuss matters with defence witnesses during a trial.

The accused's 2nd witness was Bindra Kumari her examination in chief was that she did not see the complainant being assaulted by the accused. In cross examination she told the Court she did not know how the victim received the injuries. She also told the court she saw Yogesh beat Geeta Dutt and she alone parted Geeta Dutt and Yogesh. If she was not there someone would be dead. She told the court that Geeta Dutt was bigger than Yogesh but Geeta Dutt was drunk and not able to control himself.

3rd defence witness was Seema Lata her examination in chief was that all of victims family were in Geeta Dutts compound. Joytika and her brother together assaulted Geeta Dutt. In cross examination she told the Court she did not see the victim receive injuries. She did not see complainant fall. If complainant had fallen would have seen. She would not know if anyone was drunk. Roshini and Bindra stopped the fight, not Bindra alone.

4th witness for the accused was – Sanjay Prasad, his examination in chief was that he did not see Geeta Dutt assault the victim. In cross examination he told the Court that when Geeta Dutts sister, Roshni, pushed the complainant she fell and received injuries. Geeta Dutt did not touch the victim. He was 5 metres away. Nobody was drunk. He did not know if Geeta Dutt was drunk. He did not see if Geeta Dutt drank or not. Geeta Dutt is my brother in-law. He watched them from his compound.

5th witness for the accused was Roshni Devi, her material evidence was that when she was saving Geeta Dutt, Joytika threw stones at her. The complainant and her sister in law pushed her. In cross examination she told the Court that she did not see Geeta Dutt push Joytika. She, Joytika received injuries when she fell at her place. She did not see Joytika fall at her place. She did not push Joytika. She did not know what Sanjay was saying.

6th witness for the accused was Satish Chand, his material evidence was that when he saw Joytika and her brother in Geeta Dutts compound. He did not assault her. Joytika hit Geeta Dutt with stones. They went home and Geeta Dutt went elsewhere. In cross examination he told the Court that he was as far as from the Court to the Korovou Bridge when he saw the incidents, which is about 100 metres away. Did not see Geeta Dutt push anyone. If he pushed can see. Does not know if Yogesh and geeta dutt were drunk. At the incident there was Geeta dutt, yogesh, Yogesh's wife and yogesh's sister. Nobody saved Geeta Dutt. One Bobby was there. No one else was there.

The 7th witness for the accused was Ratnesh Prakash. His material evidence was that he saw the mother (Sarita) and daughter (Joytika) hit his mother (Roshni). The son (Yogesh) assaulted geeta dutt, hit uncle with stones. . In cross examination he told the Court that he did not see who all were there. Did not see anyone throw stones. Saw something's. He ran away from there he was in another person's boundary looking.

Analysis of the Evidence

The Court heard all the witnesses in this case and noted the demeanor of all the witnesses. This case is one where the Court either believes one version or the other. The Prosecution has the onus of proving its case beyond reasonable doubt.

The prosecution witnesses, PW-1 and PW-2 were consistent in their evidence that the accused pushed PW-1 on the shoulder and she fell and received injuries as per the medical report. PW-1's injuries are supported by the medical examination of 6th November 2009, a report which was tendered by the prosecution. The background information(A.4) PW-1 told the police after the incident is that "she was assaulted by one Geeta Dutt today." D.10 which is history related by the complainant is "alleges to be assaulted by an Indian male/female this afternoon. Hit with a stone on the right side of the head and right hand. Pushed to the gravel resulting in injuries to the right wrist and left knee and hips and buttocks."

The accused for his part in cross examining the complainant asked why she pulled his t/shirt? To which she responded that she did not. The accused by this question accepts the fact that he was at the scene.

The accused denied the incident. The accused's had 7 witnesses. They were inconsistent with their evidence. The Court here would like to show what inconsistencies they gave in their evidence. The accused's 2nd witness was Bindra Kumari she told the court that if she was not there someone would be dead. She told the court that Geeta Dutt was bigger than Yogesh but Geeta Dutt was drunk and not able to control himself. The 3rd defence witness Seema Lata told the Court that she would not know if anyone was drunk. Roshini and Bindra stopped the fight, not Bindra alone. The 4th witness for the accused was – Sanjay Prasad he told the Court that Geeta Dutts sister, Roshni, pushed the complainant she fell and received injuries. 5th witness for the accused was Roshni Devi and that she did not see Joytika fall at her place. She did not push Joytika. She did not know what Sanjay was saying. The 6th witness for the accused was Satish Chand he told the Court that the incident there was Geeta dutt, yogesh, Yogesh's wife and yogesh's sister. Nobody saved Geeta Dutt. One Bobby was there. No one else was there. The 7th witness for the accused was Ratnesh Prakash he did not see anyone throw stones. He saw something's.

The inconsistent evidence of the defence witness are glaring If they were at the scene they would not be inconsistent with such things like only one saved the accused or one stating the accused was drunk and some others not. The Court does not believe these witnesses as a result of these inconsistencies.

The Court finds that the prosecution witness PW-1 and PW-2 were truthful and noted their demeanour. The Court believes their version.

The Court finds that the accused is found guilty of the offence he is charged with.

28 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

NAUSORI
27/05/10