State v Kumar [2011] FJMC 81; CRC 583.2007 (22 July 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.583/2007

STATE

VS

RAVINESH RITESHWAR KUMAR

Sergeant Volavola for the State

The accused present and appeared in person

Judgment

[1] The accused is charged with the offence of Assault Occasioning Actual Bodily Harm. The charge read as follows;

CHARGE:
Statement of Offence [a]

[2] ASSAULT OCCASIONING BODILY HARM: Contrary to Section 245 of the Penal Code Act 17.

Particulars of Offence [b]

[3] RAVINESH RITESHWAR KUMAR s/o ARUN KUMAR on the 7th day of July, 2006 at Naidiridiri Settlement, Wainibuku in the Central Division assaulted Shabnam Bibi d/o Shamsher Ali, thereby occasioning her actual bodily harm.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 27-05-2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Shabnum Bibi; on her evidence, she said that she stayed with her mother. On 06-07-2006 she went to a birthday party at Samabula. Then at 1.15am mid night after the birthday party she came home. She came by a Taxi and got down on her drive way. She said as soon as she got down the Taxi went to turn and the accused jumped at her. Then she asked what are you doing and she shouted. Then the accused punched her. The witness said her home was 50 metres away from the vicinity. The accused punch her right jaw. She said the taxi which dropped her came back after turning and from that Taxi’s light she was able to identify the accused. The witness said there were so many complaints against the accused and therefore she knew the accused well. She said her face and clothes were in full of blood. Then she went to the bathroom and washed herself. Then she realised her tooth was missing. She cried. Then her mother called to the police. She said then police came and picked her at home. Her statement was recorded and was sent to a doctor. The accused stayed right behind her house. She said earlier she had lodged complaints against the accused at Nakasi Police station. She said she does not know the accused real name but they called him as “Appu”. The witness identified the accused at dock.

[6] In cross examination the witness was suggested that she did not identify the accused. But witness said she did identify the accused from taxi’s light. The accused suggest he did not threat the victim, but she refused it. She said the accused clad in white T shirt and she cannot remember the colour of his short. The witness said the accused wears eye glass and her medical will be produced by the police. The accused suggested due to his eye operation, he cannot go in the night, but witness said she did see him and he was the assailant. The witness said that reason for assault was that she complained against the accused that always put radio in loud which her kid cannot study. Then police came and warned him. While police went again they put radio loudly. Then witness was suggested that she was punched in night club on that day. She refused the suggestion said there was another witness in taxi but she committed suicide and cannot be summoned as witness to prove she was in a birthday party. The witness said that there is no reason for lie and she positively identified the accused from taxi’s lights.

[7] PW 2-Coporal 1930 Ajit; the witness said he received on 06-07-2006 and he probed the matter. He marked the accused caution interview as Ex-1where the accused denied the offence. The charge statement was marked as Ex-2.

[8] In cross examination the witness said that victim lost two teeth and was sent to the hospital. Then the Prosecution closed the case.

[9] After that prosecution closed their case, since there was a case to answer, the accused was explained and given her rights to call the defence. Then the accused opted to give sworn evidence. But he did not call any witness on his behalf.

[10] DW1- The Accused: Ravinesh Riteshwar Kumar: The accused said on that day he was in home. After a month of the incident he was arrested for this offence. He said if the victim identified him on the same day they could have arrested him on same day. He said he did not assault the complainant. Therefore he pleaded not guilty and he is coming all the way from Labasa.

[11] In cross examination; the witness said that at that time he stayed near the house of the victim. It was about 250 metres from his place. He said he never put radio loudly and it was her brother in law’s house just beside the house of the victim. He never talked to the complainant and complainant is his brother in law’s cousin. He said that he did not hit her and she thinks that she was hit by him but he was wrongly identified.

[12] Then the accused closed his case.

The Law

[13] The Section 245 of the Penal Code provides that;

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment."

[14] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm

[15] State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) her ladyship Nazhat Shameem observed “Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm."

Burden of proof

[16] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[17] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express anion that they are guilty. If you have any reasonable doubt as to whether the accused persopersons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reaso doubt about the the guilt of tcu accused."

[18] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

"A fact is said said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[19] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[20] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said she was hit by the accused. To prove this charge as I noted to elements are to be proved. The first one is committing an assault, and the second is occasioning actual bodily harm."

[21] But in this case no medical was tendered to prove that the victim was assaulted. The victim says that she lost her tooth. The police officer says the victim lost two teeth. Thus, this is a different version and the prosecution did not prove that there was an actual bodily harm. Charge fails on that footing.

[22] It was strange that a case such as this was prosecuted without medical evidence of any description. The prosecution indicated that the Medical would be produce by police evidence. The State's case was closed without producing the Medical Report. This was an unsatisfactory state of affairs.

[23] As it turned out the court was left with no medical evidence to consider. In these circumstances the State has failed to prove that the complainant suffered any injuries. To reach the conclusion that she suffered actual bodily harm the court should look the medical report.

[24] In State v Bassop [2010] PGNC 169; N3921 (4 March 2010) PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] Madang: Cannings J considered without a Medical Report these type of charges cannot be proved easily. Therefore Non availability of the Medical Report is fatal for this charge.

[25] I am not satisfied to acquit the accused on that footing alone. The accused said that he did not assault the victim. The victim said that accused did assault her. It was happened at 1.45 am, mid night. The victim was after a birthday party. The accused was undefended and did not cross examine her state of mind and ability to indentify at that time. The victim said she identified the accused positively. Then why the accused was not arrested instantly. This incident happened on 06-07-2006. According to the EX-1, 2 cautioned interview and charge statement, the accused was arrested and charged on 02-02-2007 after 7 months from the incident. If the victim said the accused name in her statement, why the prosecution failed to arrest the accused. It is plainly understood that she was not able to indentify the accused at that time. I am bearing mind that the guidelines that have been given in R v Turnbull&#1977) Q.B.224, [14, [1976] 3 WLR 445, ( 1977) 65 Cr. App. R. 242. In that LORD WIDGERY C.J. articulated special guidance in visual identification.

"whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification"

[26] In this case that assault was fleeting type and it happened all of sudden. The question of misidentifying is raised by the accused. It was took place in midnight and I hold that there was strong chance to misidentify the accused by the victim at this case. It is unsafe to convict the accused in this scenario. Thus charge should fail.

[27] Furthermore, in the light above legal principles the prosecution to prove its charges beyond reasonable doubt. In the absence of Medical Report and the contradiction in relation to the injuries and weakness of identification of the accused, I hold that prosecution has not proved its charge beyond reasonable doubt. It creates a doubt whether this accused is the real culprit? I give the benefit of the doubt to the accused.

[28] I therefore acquit the accused.

[29] 28 days to appeal

On 22nd July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate