State v Ram [2011] FJMC 7; Criminal Case 357 of 2010 (19 January 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 357/10

Between:

THE STATE

And:

FRANCIS VIJAY RAM
SUNAINA RAM
PARKER VIMLESH RAM
ROBERT HARI RAM

JUDGEMENT

1. The four accused persons in this case are charged with one count of assault causing actual bodily harm.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Assault causing actual bodily harm: contrary to section 275 of the Crimes Decree No 44 of 2009.

Particulars of offence

Francis Vijay Ram s/o Hari Ram, Sunaina ram d/o Shree Nath, Parker Vimlesh Ram s/o Hari Ram and Robert Hari Ram s/o Francis Vijay Ram on the 23rd of April 2010 at Lautoka in the western Division assaulted Shalini Devi thereby occasioning her actual bodily harm.

3. Section 275 of the Crimes Decree reads as follows;
   

"A person commits a summary offence if he or she commits as assault occasioning actual bodily harm".

4. The four accused persons were charged on the 12th July 2010 and the case was taken up for trial on the 18th August 2010. The complainant, her mother and the investigating officer gave evidence for the prosecution. The four accused persons and two other witnesses gave evidence for the defence.
   
5. At the very out set it should be noted that there is no dispute regarding the date, time and the place of the alleged incident and the identity of the accused persons. However the accused denied assaulting the complainant.
   
6. The complainant gave evidence that she was living in a de facto relationship with the first accused for six years. She said that the second accused is the legally married wife of the first accused. The third accused is the brother of the first accused and the fourth accused is the son of the first and second accused persons. The complainant said that on the 23rd April 2010 the first accused came to her house around 10.30 to 10.45 in the night and asked her to go with him to his place. She said that she was angry with him by then, as he lied to her about his wife and son coming to his place.
   
7. However it should be noted that the complainant had told the Police in her statement, a different reason for her to be angry. The defence tendered the statement made by the complainant as Defence Exhibit 1. The complainant had told the Police that when the first accused came to her place she asked from him as to why he harasses her at work and in front of her friends. She had further stated to the Police that the first accused threatened her whilst she was going in his car.
   
8. Further it was transpired during the cross examination of the complainant, that she had gone to the Police Station to lodge a complaint against the first accused on the same day prior to the alleged incident in the present case. Further it was revealed that the Police had taken her to the first accused person's house subsequent to that complaint. The complainant admitted that the first complaint was made to the Police on the same day regarding some telephone calls from the first accused. The complainant did not give a clear answer when she was asked as to why she did not tell the court during the examination in chief, about the previous complaint to the Police.
   
9. Be that as it may, the complainant gave evidence that when she went to the first accused's house on the 23rd an argument arose. She said that the third accused came and grabbed her from the neck and squeezed the neck. She said the third accused then pushed her out of their porch to the road. She said then the first accused was inside the house. The complainant said then the second and fourth accused persons came out and the second accused pulled her hair. She said the third and forth accused started kicking her. She said then the first accused came and grabbed her hand to lift her. She said the first accused forcefully lifted her. She said that the first accused pulled her hair and then she held him from his color. She said the first accused then slapped her. The complainant said then she came to the Police and reported the matter.
   
10. The complainant tendered the medical report issued to her as Exhibit 2. According to the medical report it appears that there had been bruises and abrasions on her neck and the back. However the diagnosis says " Blunt trauma caused by fists." It should be noted that it was not revealed in the evidence of the complainant that she was given blows with fists.
    
11. The complainant was cross examined at length. She could not clearly explain the inconsistencies between the statement made to the Police and the evidence given in court. During the cross examination the defence denied assaulting the complainant and further suggested that she received injuries when she slipped and fell down near the walk way, which was denied by her.
    
12. Nitya Devi, the mother of the complainant gave evidence, that on the 23rd April 2010 the first accused came to her place and was talking to the complainant. She said she was there when they were talking. She said that her daughter left with the first accused. However the witness did not say that the complainant and the first accused had an exchange of words. The witness said that the complainant called her later and she was crying on the phone. The witness said that the complainant came home after reporting the matter to the police and there were scratches on her and her back was swollen. During the cross examination the defence suggested that the first accused did not come to take the complainant.
    
13. I.P Arvind Anand gave evidence that he was the investigating officer and he conducted the interviews of the accused persons. He said all four accused persons did not admit the offence. Further during the cross examination the witness admitted that he recorded the statement of a witness named Begum Jan. Begam Jan was later called by the defence as a witness.
    
14. After the prosecution case the first accused gave evidence and admitted that he has a long term relationship with the complainant. He said that on the 23rd they had two visitors form Labasa and they were drinking grog when the Police came around 6.30 to his place. He said the complainant too came with the police. He said he was questioned about harassing the complainant and then he showed his mobile phone. The first accused said then it was revealed that all the calls were from the complainant and the Police officer warned both of them. He further said that the Police dropped the complainant from there as it is about 10 minutes walk to her place.
    
15. The first accused further gave evidence that on the same day at about 11 in the night the complainant again came to his house. He said still they were drinking grog. The first accused said then the complainant yelled out from the walk way. He said that he or any one did not assault her and he told his wife to call the Police. Further the first accused said after 6 pm on that day his car was taken by his son and he was away for about two to three hours and he was not given the key even after his son returned.
    
16. The second accused gave evidence that on the 23rd at about 6 .30 pm a Police vehicle came to her place. She said her husband was talking to a Policeman. She said then at about 11 in the night when she was at home the complainant came to their drive way and started swearing at them. She said her husband told her to call the Police. The second accused said that the complainant was gone by the time she put down the phone. The second accused denied that she assaulted the complainant.
    
17. The third accused gave evidence that on the 23rd April he was drinking grog with others when the complainant came to their house. He said he told the complainant to go since they have visitors. He said after that he went to mix grog. He denied assaulting the complainant.
    
18. The fourth accused gave evidence that he is the son of the first and the second accused persons. He said that on the 23rd April 2010 he took the car around 6 pm and went to a friend's place. He said he returned around 8.30pm and the car key was in his pocket. He said there were visitors at home and his father, uncle and one of the visitors were having grog in the porch. The fourth accused said that he heard some one shouting and swearing around 11 pm. He said he went outside and saw the complainant was in the drive way. He said the first accused told her to go. He said after a while she went away and he saw her slipped. He said she got up and went away. The fourth accused denied that he assaulted the complainant.
    
19. Begam Jan, a witness called by the defence said that on the 23rd April 2010 she had visitors and she went with them to the round about. She said the accused persons are her neighbours and she saw a girl standing near the slope and she fell. The witness identified the girl as the complainant who was sitting in the court. Further she said that she knew her before by her nick name.
    
20. It is the duty of the prosecution to prove the charge against the accused persons beyond reasonable doubt. It should be noted that all the accused persons denied the allegations of assaulting the complainant on the 23rd April 2010. Further the defence led evidence to explain as to how the complainant received injuries. The fourth accused said he saw the complainant falling down. Further the defence called an independent witness and she corroborated the evidence given by the fourth accused regarding the complainant's fall. The defence witnesses gave evidence that there is a slope in the drive way. Even the complainant admitted during the cross examination that there is a slope. It should be noted that the defence maintained the same story throughout the case. In a criminal case of this nature the defence need not disprove the charges. It is sufficient for the defence to create a reasonable doubt in the prosecution case.
    
21. It should be noted that the evidence of the accused persons and the defence witnesses were consistent and corroborated each others testimony. The prosecution could not challenge the credibility of the defence witnesses and the accused persons. The evidence given by the accused persons and the defence witnesses raises a doubt, whether the complainant actually received injuries after falling down on the ground. Although the prosecution tendered medical evidence it should be noted that "blunt trauma caused by fists" does not fall in line with the evidence led by the prosecution.
    
22. On the other hand the evidence given by the complainant was not consistent and convincing. The defence was able to challenge the credibility of the complainant. It was brought to the notice of the court that the complainant suppressed the fact, that she made a complaint on the same day prior to this alleged incident. The complainant could not provide a satisfactory explanation as to the why she omitted to tell the court about the previous incident. It appears to be an incident occurred in the same transaction and it has a bearing on this case too. Secondly I observed inconsistencies in the evidence given by the accused and the statement she gave to the Police. All in all I cannot be satisfied about the evidence led on behalf of the prosecution. On the other hand the defence created a reasonable doubt in the prosecution case.
    
23. In the circumstances I am not satisfied that the prosecution proved the charge against the accused persons beyond reasonable doubt. Thus I acquit accused 1-4 from the charge against them.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

19th January 2011.