State v Kumar [2011] FJMC 87; CRC 406.2010 (29 July 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.406/2010

STATE

VS

SANJEEV KUMAR

Police Constable Ravi 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]

First Count

[2] ASSAULT OCCASIONING ACTUAL BODILY HARM – Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

[3] SANJEEV KUMAR on the 8th day of March, 2010 at Nasinu in the Central Division unlawfully assaulted RABUL NAZ NISHA and thereby occasioned actual bodily harm.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 14-06--2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Rabul Naz Nisha; in her evidence, she said that she stayed with her husband and 4 kids. Her husband is the accused of this case. She further stated her husband is the sole bread winner of the family and she does domestic duties. On 08-03-2008, she said she was in Molau Settlement with her husband. On that day she was suppose to go to the hospital then she asked money from the accused. When he refused she discussed and she was pushed and slapped by the accused. She said at that time she was pregnant and she really angry with her husband’s behaviour. Then she lodged complain against him. Her Medical Report was rendered as Ex-1. She said she was really depressed and she got 3 children from this marriage and one from her first husband. She said that she had forgiven him.

[6] In cross examination the witness was suggested that she was lying to this court. But she denied the suggestion.

[7] Then Charge Statement and Interview Notes were marked as Ex-2 and Ex-3 since the accused admits the facts. Then prosecution closed their case.

[8] After that prosecution closed their case, since there was a case to answer, the accused was explained and given his rights to call the defence. Then the accused opted to give sworn evidence and he also called one witness.

[9] DW1- The Accused: Sanjeev Kumar: The accused said that he did not assault the wife. He said that the victim was left with two kids and then he gave shelter to them. This is third complaint and it became a habit of the victim to lodge complaints against him. Earlier he used to plead guilty and this time he does not want to plead guilty. He said he had never assaulted the victim. He said his past record was bit bad when he was single and the victim took advantage it. He said that even though she had been complaining against him they have been looking after for 11 years by him.

[10] In cross examination; the witness said that this is the third time that he had been charged and all charges were assault cases. The prosecution suggested that the accused is habitual offender with violence. But the accused denied it. The accused said their family relationship is good and he is supporting the victim and the children. Then prosecution questioned why his wife lodged these complainants. The accused said his wife is very demanding of plenty of things when he refused she used to complain against him. Then Police questioned “Q: demanding wife is very hard to control? A: Yes, Q: only way to keep them shut by assaulting them? A: No, Q: You assaulted your wife because she is very demanding? A: No, she gets angry very fast, Q: to cool her down you assaulted her? A: No “

[11] DW 2: Zoya Shabeen: This witness said that the accused never assault her mother and the accused, step father always kept them happy.

[12] In cross examination she said that she left school because of financial problems. She stopped schooling in last January. She said that she was at home on 08-03-2010. She studied at Suva Muslim School and usually goes to school around 7-7.30am. She said she did not go to school on that day. Her mother was pregnant and supposed to go to the Hospital for routine checking. She said nothing happened on that day. On cross examination the witness admitted that she was told to come to the court and say this by the accused. She said she is staying 11 years with the accused and her step father supported the family. She said that “I and Step father have close relationship; he is a caring and loving father. I am very keen to help the father. I came to help him, I know whatever I said will favour father today, that is why I came to court” (At this moment witness showed uneasiness and voice was slowing down)

[13] Then the accused closed his case.

The Law

[14] The Section 275 of the Crimes Decree 2009 provides that;

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

Penalty — Imprisonment for 5 years.”

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

[16] In State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) Her Ladyship Justice Nazhat Shameem observed similar offence under the repealed penal code said; “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

[17] 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.

[18] 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 mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they ailty. If you have any reasonable doubt as to whether the ache accused persons 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 reasonable doubt abou thet of the accused."

[19] 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 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.

[20] 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

[21] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said she was pushed and slapped 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."

[22] She was examined by a doctor same day and he noted 3 minor injuries. On that examination the victim said to that doctor that she was assaulted by the accused. "Was assaulted by her de facto husband- Section A (4)". This statement was made by the victim on the same day and her complaint of assault is proved by the Ex-1 Medical Report.

[23] When I draw my attention to the accused interview statement which was tendered as Ex-2 he denied the assault. But in that Question number 17 indicates the reason for assault. I reproduced it for clarity.

"Q 17: Is your De facto wife pregnant?
A: Yes, But the child is not mine"

[24] In this case the victim asked money to go to the hospital to do the routine medical check up. The accused is refused to give money and it led to this assault. Evidence must not be counted it should be assessed and weighed. The Defence witness, Zoya denied the assault. But she is a sole dependant of the accused. Even victim is a sole dependant and they wanted to reconcile this matter. But the offence is related to a domestic violence and it cannot be reconciled under Section 154(6) of the Criminal Procedure Decree 2009. It Says

"This section does not apply to offences of domestic violence, as defined by the Domestic Violence Decree 2009."

[25] Thus this reconciliation section does not apply to the Domestic Violence and despite the willingness of the parties to reconcile this matter; court had to hear this case amidst the long list of trials in this court. The accused did not want to plead guilty, if so I could have taken this reconciliation fact as a mitigatory factor.

[26] Thus, forgoing reasons I refused defense's evidence. I accept victim's evidence. Her evidence was corroborated by the Medical Report. The Defence's witness Zoya is not an independent witness; therefore I reject her evidence on that footing. Her Evidence was well impeached by the prosecution.

[27] I therefore convict the accused as charged.

[28] 28 days to appeal

On 29th July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate