State v Ram [2011] FJMC 146; Criminal Case 121 of 2010 (2 December 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA

Criminal Case No: 121 of 2010

STATE

V

TOTA RAM

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: PC Chetty
Accused: Present.
Date of Hearing: 2nd November 2011

JUDGMENT

Introduction

The accused is charged as follows: "Common Assault, contrary to Section 274 (1) of Crimes Decree 2009".

The particulars of the offence reads: "Tota Ram on the 28th day of February 2010 at Naidovi, Cuvu, Sigatoka in the Western Division unlawfully assaulted Renu Kumari."

The Law

Section 274 (1) of the Crimes Decree provides that

"a person commits a summary offence if he or she unlawfully assaults another person.

Penalty — Imprisonment for 1 year.

(2) The offence under sub-section (1) is to be applied if the assault is not committed in circumstances for which a more serious offence is provided for in this Act."

In State v Farik [2008] FJHC 25, Justice Shameem stated
"Common Assault is the assault of a p withowithout lawful excuse. The prosecution does not have to prove that the assault resulted in any injury. But you must be satisfied so that you are sure thatAccused did assault the [victim], and that he or she did noid not act without lawful excuse. If the Accused acted in self-defence for instance, you cannot find [him or her] guilty of any offence"

Burden and Standard of proof

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v Minister of Pensions, in commenting on the proof beyond reasonable doubt stated:

"it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

The Evidence

Evidence of the Prosecution Witnesses

The Prosecution called 4 witnesses: Pw-1 – Renu Kumari, and Pw-2 – Sheenal Renika Chand, PW-3 – Special Constable Bhan, and PW-4 – Constable Sunil Dutt.

Evidence of Pw- 1 – Renu Kumari (Sworn on Ramayan in Hindi)

Examination in Chief – "February 2010 staying at Cuvu since birth at fathers place. 1 brother and 1 sister. 28th February 2010 at 4.30pm at home. Brother came from overseas entered house. He said who opened the room. I told him had visitors to sleep. He fought with me and my husband. He said we used things. We called police. Police came. He was fighting. He pushed me and hit me. I fell down.

Bhan and Jerry police Officers came from Cuvu Police Post. I was in room. Police There. He hit me and pushed me. He pushed my arm. Visitors were in room. Police – Bhan and Jerry. Daughter – Sheenal, brother in law – Raj Dayal. Also Nilesh and Nisha were there. Over 4 years we had bad relationship. Whenever he came we fought. Lodged complain to police, given medical. Cannot see properly. Signed medical [PE-1 – Medical Report]"

Cross-Examination – "We were home then you came. Daughter was at home. I donot recall who opened the door. I requested accused to take clothes out, accused told me police from Stka will come and give items. Went to get 2 police after he assaulted. My husband did not threaten you. I picked up the things. I did not swear at your mother. I sleep in all rooms. Accused hit me with both hands and punched me."

Re-Examination – "police were in bedroom when accused punched me"

Evidence of Pw- 2 – Sheenal Renika Chand (Affirmed)

Examination in Chief – "Recall February 2010 was at home Cuvu at 4.30pm. some of our visitors came to our place. They were in bed-room. My uncle, Mr Tota Ram came on 28th February. He on 28th Feb. he got inside the house and went straight to bedroom locked the door. Argument with my father an uncle. My mother came in bedroom. Saw uncle hit with his fist on mothers left hand and pushed her on the bed. Incident in same room, locked previously. Father, Bhan, Jerry and my aunty and uncle were also there. "

Cross-Examination – "I was inside home when accused came that day. My father was there. I said mum broke door where accused sleeps. Room was previously locked. We all entered room after some time. Both were quarrelling. You fisted her with one hand. Cannot remember that scene my mother threw things."

Re-Examination – Nil

Evidence of Pw - 3 – Special Constable Bhan (Sworn on Ramayan in English)

Examination in Chief – "12 years as SC. 28th February 2010. 4.30pm at Cuvu Police Post. Received report from Naidovi. Victim complained that brother causing problem. Me and a Constable went to attend. Tota was in bedroom. We went inside to Tota then Renu, Umesh and their daughter came. They argued. We tried to push them outside. Nobody was in control.

Tota had big bag. Renu tried to put bag out. Accused pushed her not to put bag out. We took all for investigation. Accused tried to push complainant as she picked bag. So she did not pick bag. She fell in bed.

Cross-Examination – "did say "open door". They came themselves. They were asked to stay outside. When we were talking to accused they came in and started the fight. She tried to take the bag. Accused pushed her hand on shoulder. She picked duty free bag. Complainant tried to take bag out.

Re-Examination – Nil

Evidence of Pw- 4 – Constable Sunil Dutt (Sworn on Ramayan in English)

Examination in Chief – "received report from complainant 1st March 2011. interviewed accused. Q.11 read in Court. [PE-2- Caution Interview] accused was summoned to Court."

Cross-Examination – "I asked accused to come for interview"

Re-Examination – Nil

At the close of the Prosecution case the Court ruled that the accused had a case to answer and the options were explained to the accused.

The Evidence of Accused – (Sworn on Ramayana in English)

Examination in Chief – "I occupy the house. I visit house 5 times ayear. Room was locked broken into. I came to check. I did not inform them. I went in the room. Sheenal opened. She told me mother broke-in. found things missing called Stka Police Station. Police told me to wait inside the room. After 5 minutes. Heard knock. "Police, Tota open the door. I opened door police came in. family burst in room.

Renu picked up my bag and duty free bag and said she will throw bag outside. She swore at my mother. With my right hand I pushed her. She dropped the bag. She fell on the bed. Police told her she cannot pick my things. Taken to Cuvu. Complainant reported. At 1st she said I assaulted her arm. Same night Const Bhan came in. next morning reported against officer who charged. If complainant had not picked my items. I would not react like that. I did not fist her. If they did not touch my property this would not happen."

Cross-Examination – "former police officer. Know laws. I pushed Renu. If she did not pick up items. I would not push. They were arguing and fighting. Nobody did anything when she picked up the bag. Pushing is assault. Pushed her in front of police officer. Did tell police what complainant was doing."

Re-Examination – "Police should not let them in my room"

Analysis of the Evidence

The Court has scrutinized all the evidence of all the witnesses in this case. The Court has also noted the demeanor of all witnesses.

The accused is charged with common assault. The accused who has some knowledge of the law was unrepresented in this case. The Court has also noted the caution interview of the accused.

The evidence of PW-1 and PW-2 is contradictory as it relates to the actus reus (Physical aspect of assault). Pw-1 said "He hit me and pushed me." PW-2 said "Saw uncle hit with his fist on mothers left hand and pushed her on the bed."

In contrast PW-3's version is consistent with what the accused states. That the victim tried to pick up the duty free bag of the accused and the accused pushed the victim and the victim fell on the bed. The accused is consistent in his story to police in the caution interview and in this Court. The Court also notes the reason the accused reacted in the manner he did. He wanted to protect his items from being picked up and thrown by the victim. She was trying to throw his duty free items out of the bedroom.

The actions of the accused in the given circumstances are natural reaction by any reasonable person when his or her property is under threat. The Court finds that the accused did nothing wrong. He acted on instinct to protect his property. He had no intention to cause any harm or injury to the victim. Protecting oneself or ones property with reasonable force is accepted in law, as self-defence.

The Court is not satisfied beyond reasonable doubt on the evidence tendered as to the accused's guilt.

The accused is acquitted of the charge.

28 Days to appeal.

12th December 2011

Chaitanya Lakshman
Resident Magistrate
Sigatoka