State v Raj [2011] FJMC 75; Criminal Case 866 of 2010 (20 June 2011)

IN THE MAGISTRATE'S COURT AT NADI

Criminal case No. 866 of 2010

STATE

V

VISHWA KUMAR RAJ AND VINIT VIKASH RAJ

Ms. Latia Vateitei for the state
Mr. R Singh
Date of Ruling: 20.06.2011

RULING
[On no case to answer]

The Application

1. This is an application by the defence counsel under Section 178 of the Crimes Procedure Decree of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the Accused to their defence and as a result the Accused should be acquitted.
   

State's Response

2. It was submitted on behalf of the state that:
   
   1. That in light of evidence adduced the State has proven its case beyond reasonable doubt;
      
   2. That PW1 and PW2 positively identified the two Accused persons by recognition and both witnesses gave sworn evidence in term of assault. PW1 said he was assaulted while PW2 witnessed the assault by both Accused on PW1 with a police baton;
      
   100. That in light of injuries that PW1 described when giving evidence that were received from the assault, and also in light of assault itself, intention can be inferred. PW1 was not hit only once and the injuries do not show that it was anything less than an intended act to cause harm;
        
   4. That the states evidence proved the elements of the offence of "grievous harm" therefore it has established a prima facie case.
      

The Governing Section

3. The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads:
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused".

The Charge

First Count

Statement of Offence(s)

Grievous Harm: Contrary to section 277 (a) of the Penal Code, Cap 17.

Particulars of Offence(s)

VISHWA KUMAR RAJ and VINIT VIKASH RAJ on the 28th day of February 2009 at Waimalika, Sabeto, Nadi in the Western Division unlawfully and maliciously did grievous harm to Sarwan Lal.

THE CHARGING SECTION

4. Section 227 of the Penal Code enacts:-
   

"Any person who unlawfully and maliciously does grievous harm to another is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment".

5. The prosecution must prove five elements for the charge of Grievous Harm: (i) that these Accused, Vishwa Kumar Raj & Vinit Vikash Raj, (ii) by an unlawful act, (iii) with intent, (iv) did grievous harm (v) to the complainant, Sarwan Lal.
   

THE LAW

6. The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.
   

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla or evidence can never be enough nor can any amount of worthless discredited evidence."

7. In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.
   
8. Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:
   
   1. When there is no evidence to prove an essential element in the alleged offence;
      
   2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
      
   100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
        

The evidence

9. The prosecution produced 3 witnesses. The application for no case to answer would be determined on the evidence so far laid before this court. I would therefore state what each witness has testified.
   
10. The first witness was Sarwan Gounder, the complainant in this case. He testified in examination in chief as follows:-
    

"...on 28th February 2009 at 9.00pm an incident happened. I know Wishva and Vinit Raj. They are my neighbours. I know them for 40 years. Their house is within one compound. I was going to leave one of my friends, Suren Chetty at his place. His house is about 100 to 120m away from my house. He was at my place. He was drinking grog. I too had. Thereafter we had gin. We started drinking about 6.00pm. We two were drinking. When I take my friend to his place I didn't think I was drunk. On my halfway I saw Wishva and his son. They were standing on the road. Then someone hit me. Vinit hit me on the head. When I turn Wishva also hit me on my head. Then they started kicking me on my back and belly. My wife and neighbours came to rescue. They took me to the hospital in a van. My wife and Raneel Kumar took me to the hospital. Suren Chetty also came. I didn't complain. Somebody might have complained to police..."

11. Under cross examination Sarwan Goundar testified as follows:

"I have a criminal case in this court. That is for Criminal Trespass and Assaulting the complainant, Muthusamy Goundar. Muthusamy's house is in separate compound,about 20-25m away. Next house is Wishvas' house. We have ongoing problems with accused and their family. There is a High Court case over land dispute. Mrs. Wishva made lot of complaints against us. I didn't know about a complaint made by Sallend, son of Muthusamy Goundar on 28.02.2009 at 2155hrs. (But later when the book was show he admits the complaint). I don't know who made a complaint to police (After suggestion by defence counsel, witness says may be my wife). There was no street light. It's a gravel road. I met the accused in the corner of the school buildings. I can't say how far it is from Wishva's house. (Later he says 80-100m. I have given two different places; one is near Muthusamy's house other one school corner, as the place of incident.

12. In re-examination Sarwan Goundar testified that:- Criminal Trespass cased still pending. I told the Dr. about the incident. There were lights near the school. Incident was at near the school.
    
13. At this point I must highlight how this witness, Sarwan Goundar made statement to the police. His statement was tendered as Exhibit D1. in his statement he states as follows:-
    

"...I can clearly recall today that on Saturday 28th February 2009 at about 9 am I went to my Solicitor namely Haroon Ali Shah with my neighbour namely Sada Deo. At about 1 pm we came back home after discussing issues regarding to the land. Sada Deo straight went home after coming from the town. I than did some gardening at home. At about 6pm Sada Deo came home and we decided to have grog. We than mixed grog and sat in my front porch and began drinking it. At that time my wife namely Seema Gounder and my son namely Saawal Gounder aged 12 years was at home. At about 8.00pm we decided to have some gin as I had ½ bottle gin. We drank about – 8 glasses when Sada Deo decided to go home. I than told him that I will drop him home as his home was a bit far. After dropping Sada Deo I proceededback home on foot. As I was going down the Waimalika Road, I saw two Indian boys were standing near Muthusami's House namely Vineeth Rao s/o Vishwa Raj and Ashneel. As I went past the two Indian boys, someone hit me hard on my...

A police baton in his hand. I then came to know that Vineeth had hit on my back with the baton. He then again tried to hit me with the same baton and I tried to save myself. In that process I got hit several times on both of my hand. They then tried to push me into their compound but I freed myself and ran towards Sada's house shouting on top of my voice for help. As I was running towards Sada's house one Indian man namely Vishwa Raj hit me on my head with a police baton for which I received injuries. Suddenly I had another hard blow on the back on my head. I then felt on my face that blood was flowing heavily. I than shout again for held. Suddenly I fell down on the ground. As I fell on the ground Vishwa and his Vineeth started to kick me and punch me and also hit with the police baton. They hit me on my chest, stomach, back, shoulder, right eye, nose and my lips numerously for which I received injuries. Suddenly my friend Sada came and jumped on me to save myself. As I was being saved by Sada, Vishwa and his son kept on assaulting me they only said "Maichod ke maro" Hit the Mother Fucker".

Suddenly my wife and Sada's wife came and saved us as the two ladies me Vishwa and his son went away swearing at me saying "Maichod" [Mother Fucker]. Sada then held me and place me on my feet as I could not stand up by feet as I was injured. After sometime Namaka Police Officers came as someone called for Police. Sada then took me to Nadi Hospital for medical treatment. I just want to state that I want Vishwa and his son namely Vineeth to be charged by the police for the injuries I received and also I want justice to be prevailed as Vishwa was after me for a long time due to Land Title issues. I also want to state that my son Saawan is in hospital since that day as he was terrified with the incident".

14. The second witness for the prosecution was Mr. Sagadaven Chetty. He testified in examination in chief as follow:-
    

"I can recall a fight on 28.02.2009. I made two statements to the police. I made my second statement 18 months after the first statement. I was there in the fight. On 28th February 2009 around 6.00pm I was at the complainant's house which is 70 yards away from my house. We had some grog-myself and Sarwan. There was iced gin. It took about one hour. I can't say the exact time when I met Sarwan. Sarwan dropped me near to my house. It was 8.30 or 9.00pm. I went to the bed. There was shouts. I ran towards the place. It was near to Muthusamy's compound. I saw Vishwa, his son, Sarwan, Muthusamy and Muthusamy's son there. There was another guy. Vishwa left his compound. Vishwa and his son started beating Sarvan Goundar. I tried to stop but we could not stop. Vishwa had a police batten in his hand. Police came and told take Goundar to hospital. They took me to police station. They didn't take Vishwa he was there. I told the police. Police told me not to tell Vishwa's name. After that Sarwan was in hospital. My son came. I was taken to my house. I saw Sarwan at the police station the same day. I didn't call the police. Sarwan was bleeding Raj was there. Police question me about the incident at Muthusamy's house. Sarwan was bleeding when I saw him at the police. Vishwa is my neighbour. I know him about 8/9 years. I know his son. I was not drunk after taking grog and gin. I saw the incident".

15. Sagadevan Chetty testified under cross examination as follws:-
    

"I was having grog and gin on that day from 6.00pm at Sarwan's house. He dropped me at my house and he left. After 5 minutes I heard commotions. I asked my wife for the weapon. I went to Muthusamy's compound. Vishwa, Muthusamy's son, Muthusamy all were shouting at Muthusamy's compound. One of Muthusamy's sons, Rajen and 5 people were shouting. Assault has not yet done. Sarwan's wife, Muthusamy and my wife came to the scene on the road. Then beating started. They were beating Sarwan. My house gate is 3 yards away from Sangam's School. I made two statements; I made the first statement on 28.02.2009 and the 2nd on 02.11.2009. I disown my two statements today".

16. Under re-examination Sagaden Chetty stated that he saw these accused and tried to stop and at the time of incident he was there.
    
17. The third witness was PC 3796 Ronald Ram, Investigating Officer. Under examination in chief he testified that:-
    

"...about February 2009 I was attached to Namaka police. I recall 28.02.2009. I received a complaint where a PC was involved. I was Investigating Officer. I visited the scene. I have some recollection of the scene. There is a Primary School-5 minutes walk from the scene. I recorded the report. I met the victim after an hour of the report. He had injuries on his head, face and back (fresh injuries). The victim went for medical examination. We get the MR in the weekdays. Weekends MR not issued. 28.02.2009 falls on a Saturday". Some documents were marked through this witness without objection by the defence counsel. They are as follows:-

EXHIBIT 1- Charge statement of first Accused

EXHIBIT 2- Charge statemnet of second Accused

DEF. EXHIBIT 1- Charge statement of Muthusamy Goundar.

18. Under cross examination Mr. Ronald Ram stated that:-
    

"Other officer took Muthusamy Goundar's report at 9.00/10.00pm on that day. She made a complaint against the complainant in this case. The report was for trespass. The report was made at the same time on 28.02.2009. That time I attended both reports. I did not bring my diary. I am giving evidence from my memory. I know this a hearing. Kokilama also made statements supporting Muthusamy's report. I did take statements of 7 alibi witnesses. They confirmed Accused was at Tavatavu, Nadi that evining.... I did not find first or second accused at the scene. I went to their house. They were at home. I went to their house the following day. I couldn't get the batten. In this case I couldn't draw the outline of the scene. I took the complaints of Sarwan Goundar and Sadasivam Chetty. I took everything they told. I recorded what the witness said. I didn't record what was not told to me. I didn't take photograph of the scene.

19. In Re-Examination Ronald Ram testified that there was a complaint by Sarwan Goundar on that night.
    

The Determination

20. It is for the court to determine whether there is sufficient evidence in respect of each one of element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 210 of the Criminal Procedure Code Cap.21.
    
21. Both accused have been charged with offence of causing grievous harm with police batten to the complainant on 28th February 2009.
    
22. In support of its case the prosecution has tendered the charge sheet and the oral evidence of Sarwan Goundar, the complainant, Sagadevan Chetty and Investigating Officer, Ronald Ram.
    
23. The complainant, PW1 when giving evidence stated that Sagadevan, PW2 and he had grog and gin at his house starting from 6.00Pm to 9.00pm. After that PW2 decided to go home. PW1 told that he will drop PW2 at his home as his home was bit far from his. When I take my friend to his place I didn't think I was drunk. On my halfway I saw Wishva and his son. They were standing on the road. Then someone hit me. Vinit hit me on the head. When I turn Wishva also hit me on my head. Then they started kicking me on my back and belly. My wife and neighbours came to rescue.
    
24. It is to be noted that PW1 in his police statement has given different description of the incident wherein he said that as he was going down the Waimalika Road, I saw two Indian boys were standing near Muthusami's House namely Vineeth Rao s/o Vishwa Raj and Ashneel. As I went past the two Indian boys, someone hit me hard on my...A police baton in his hand. I then came to know that Vineeth had hit on my back with the baton. He then again tried to hit me with the same baton and I tried to save myself. In that process I got hit several times on both of my hand. They then tried to push me into their compound but I freed myself and ran towards Sada's house shouting on top of my voice for help. As I was running towards Sada's house one Indian man namely Vishwa Raj hit me on my head with a police baton for which I received injuries. Whereas PW1 said nothing about running towards Sada's house shouting on top of his voice when he gave evidence in court. In his police statement PW1 had stated the two Indian boys were standing near the Muthusamy's house. Nevertheless in his examination in chief he said that he knew the accused for 40 years as neighbour. If it is so why he told he saw two Indian boys were standing. This clearly shows that PW1 was not sure of the men standing there.
    
25. In cross examination PW1 stated that Muthusamy's house is about 25 metres away from his house. He further stated that accused family and his family having problems from long time and also he admitted that there has been a pending land matter in the court against the accused.
    
26. Under cross examination PW1 told there were no lights, street or otherwise, on his way home. In examination in chief he didn't say anything about the lights but in re-examinations he said there were lights. Even in his police statement PW1 did not mention that there were street lights at the time of incident.
    
27. PW1 stated in his evidence that they beat on my head with a police baton. However he could not clearly say who had the police baton. Police never recovered a police baton from the accused.
    
28. PW1 while giving evidence was inconsistent with his statement. First in examination in chief he stated that the incident happened close to Muthusamy's house. Whereas he later in cross examination stated that the incident took place at the corner of the school building which is a totally different location from that of Muthusamy's house. In cross examination he admitted that he gave different locations as the place of incident. It is to be noted that an incident cannot take place in two different places.
    
29. PW1 did not give his statement to the police on the day of incident namely on 28.02.2009. He gave his statement to police on 02.03.2009, 2 days after the incident.
    
30. The Medical Report was not tendered by the prosecution. However some parts were read out. The Medical Report was marked and tendered by defence as EXHIBIT D1. In the Medical Officer's Report the brief circumstances of the incident according to the patient were: "He was assaulted with a police baton by PC Vishwa". This is the first opportunity PW1 had to brief the circumstances of the incident. Here he did not mention that the second accused Vinit hit him.
    
31. The second witness, Sagadevan Chetty gave evidence for the prosecution. In cross examination he gave different version of events of incident that happened on 28.02.2009. His evidence was inconsistent with his statement that he gave to police and also inconsistent with the evidence of PW1. When questioned about his inconsistency he resorted to saying that the police officer wrote down something else. He said he made two statements about the incident. One was made on 28.02.2009 and the second one was made on 02.11.2000. However, in cross examination he said that he disowns the two statements made by him.
    
32. Both PW1 and PW2 resorted to saying that the police officer wrote down something else.
    
33. Mr. Ronald Ram, Investigating Officer in cross examination denying such allegation confirmed that "I took the complaints of Sarwan Goundar and Sadasivam Chetty. I took everything they told. I recorded what the witness said. I didn't record what was not told to me".
    
34. In my judgment the evidence adduced by the prosecution has been so discredited as a result of cross examination and also the evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
    

Conclusion

35. In my judgment it appears to me that a case is not made out against the accused persons sufficiently to require them to make a defence.
    
36. I therefore dismiss the case and acquit the accused, VISHWA KUMAR RAJ AND VINIT VIKASH RAJ, from the charge of Causing Grievous Harm contrary to section 227 of the Penal Code, Cap 17.
    

M H Mohamed Ajmeer
Resident Magistrate
Nadi
Signed at Nadi on this 20th day of June 2011