State v Devi [2011] FJMC 39; CRC49.2009 (25 February 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 49/09

BETWEEN

THE STATE

AND

SUNITA DEVI

JUDGEMENT

1. The accused in this case is charged with one count of criminal intimidation. The statement of offence and particulars of offence are as follows;
   

Statement of offence

Criminal intimidation: Contrary to Section 330 of the Penal Code

Particulars of offence

Sunita Devi d/o Ram Chandra on the 06th day of September 2008 at Lautoka in the Western ivision without lawful excuse threatened Joshika Lata d/o Suresh Chandra with kitchen knife with intent to cause alarm to the said Joshika Lata d/o Suresh Chandra.

2. The accused was charged on the 26th January 2009. The case was taken up for hearing on the 27th July 2010. The prosecution was conducted by an Officer of the DPP office. The accused was represented by a Counsel. The prosecution called four witnesses and tendered a statement of another witness in evidence. After the prosecution case was closed the Court held that there is a case for the accused to reply. Only the accused gave evidence for the defence.
   
3. Section 33 0f the Penal Code reads as follows;
   

330. Any person who without lawful excuse-

(a) threatens another person or other persons whether individually or collectively, with any injury to his or their person or persons, reputation or property, or to the person, reputation or property of anyone in whom that person is or those persons are interested, with intent to cause alarm to that person or those persons, or to cause that person or those persons to do any act which that person is or those persons are not legally bound to do, or to omit to do any act which that person is or those persons are legally entitled to do, as the means of avoiding the execution of such threat; or

(b) directly or indirectly, knowingly causes a threat to be made to another person or other persons, whether individually or collectively, of any injury to his or their person or persons, reputation or property, or to the person, reputation or property of anyone in whom that person is or those persons are interested, with intent to cause alarm to that person or those persons, or to cause that person or those persons to do any act which that person is or those persons are not legally bound to do, or to omit to do any act which that person is or those persons are legally entitled to do, as the means of avoiding the execution of such threat,

is guilty of a misdemeanour.

If the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or with imprisonment for a term which may extend to seven years or more, or impute unchastity to a woman, he is guilty of a felony, and is liable to imprisonment for ten years.

4. The Complainant, Joshika Anjali Lata gave evidence that on the 06th September 2008 when she was walking back home with three friends and her brother, the accused namely, Sunita Devi came in her car and parked in front of her drive way. She said they were just about to reach their home and the accused started swearing at her. The complainant said when her land lady came there, the accused swore at her too. She further said that the accused threatened her with a kitchen knife. The complainant said that the accused threatened her saying that she will not let her study and she will kill her.
   
5. Joshika Lata further said that although her brother and her friends were there, they did not see the knife. She said in answer to a question put by the Court that her friends and her brother were about 2 meters behind her. How ever the prosecution did not call her three friends or the brother to give evidence.
   
6. The prosecution called Preetika Prasad, the land lady of the Complainant. She said on the 06th September 2008 when the Complainant, her friends and her brother were coming back home, a car was parked in front of her compound. She said the accused came out of the car and went to the Complainant. The witness said that when she was standing near her gate and the accused was swearing at the Complainant. She said the accused uttered "I will hit you". Further the witness said that the accused swore at her too.
   
7. The witness, Preetika Prasad said that she was about 40 feet away from the incident. She said that she saw the accused getting off the car and going near the Complainant. She said that apart from swearing at the Complainant she did not see any thing else. This witness did not say any thing about threatening the Complainant with a knife.
   
8. It should be noted at this juncture that apart from the Complainant, the only other witness who was called by the prosecution to corroborate the evidence did not mention anything about the knife. Surprisingly the prosecution did not call the three friends or the Complainant's brother to give evidence. It appears that the best witnesses to corroborate the Complainant's version would have been the three friends and her brother who were present when the alleged incident took place. However the Complainant said in evidence that none of them witnessed the knife.
   
9. Be that as it may, the prosecution produced a kitchen knife for the Complainant to identify as the knife which the accused is alleged to have used. It should be noted here when an exhibit is tendered in evidence the prosecution has to tender it in a an acceptable manner. The purpose of identifying an exhibit is to buttress the prosecution evidence and to show that it was the same knife which was used by the accused. It has to be elicited through the witness as to how she could identify the knife as the same one which was alleged to have been used by the accused. However in this case the prosecution just produced the knife without establishing how the Complainant is going to identify it as the same knife. Making this position worse, the Complaint just confirmed that it is the knife which was used by the accused, without mentioning how she recognizes it. I do not see the manner, in which the exhibit was tendered and identified, as a reliable and acceptable way to produce evidence before a Court of law. Although the Complainant said she recognizes the knife I am not convinced about the evidential value of the knife.
   
10. The evidential value of the knife was more flattened by the evidence given by the Investigating Officer of this case. WPC 2785 Lavinia gave evidence that after few months of the report of the alleged incident, she went and uplifted the kitchen knife from the accused's house. She said that she can't recall how many statements were recorded from the Complainant. But she said in one of the Complainant's statements she had described the knife as a "black handled" knife. The Investigating Officer said she went to the accused's kitchen to find the knife and this was the only back handled knife although there were couple of other knives.
    
11. The prosecution failed to establish a nexus between the knife and the alleged incident. It should be noted with regret that the purpose of investigations, the purpose of collecting evidence and the purpose of producing exhibits seem to be totally misconceived by the prosecution.
    
12. In the foregoing circumstances I am reluctant to believe that the accused in fact used a knife to commit the alleged offence. Further I have observed a lot of inconsistencies between the evidence of the Complainant and the witness, Preetika Prasad. Once the Complainant said that when the Land lady came to the scene the accused threw the knife on the back seat of the car. How ever in contrary to this position, the Land lady, Preetika Prasad said that she saw the entire incident from the time the accused got off the car and leaving the scene. But she did mention any thing regarding a knife. In this backdrop I have a doubt about the credibility of the two main prosecution witnesses.
    
13. The prosecution called another witness, namely Rohitesh Chand to give evidence and tendered a statement of one Shiu Shanker Prasad. I did not see any relevancy of the evidence of these witnesses to this case. I have perused the caution interview of the accused as well. I could not fathom at least an iota of relevancy of the evidence given by Rohitesh Chand and the statement of Shiu Shanker Prasad. Their evidence would have been relevant if the accused has put forward an alibi as a defence.
    
14. It is noted that the burden of proof lies on the prosecution in a criminal case like this and the standard of proof is beyond reasonable doubt. Even if the accused does not adduce any evidence at all, it is the duty of the prosecution to discharge the burden. However as far as this case is concerned it should be noted that the prosecution has failed to fulfil this primary obligation.
    
15. The accused gave evidence and denied the allegations. Basically the evidence led on behalf of the prosecution was not consistent and plausible. The credibility of the prosecution witnesses was dubious and it was not up to the standard required in a criminal case. The manner in which the prosecution led the evidence was more like a chase of wild goose. I am not satisfied that the prosecution proved the charge against the accused.
    
16. In the circumstances I decide to acquit the accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

25.02.2011