State v Nabi [2012] FJMC 110; Criminal Case 857.2010 (1 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI

Nadi Criminal Case No. 857 Of 2010

BETWEEN:

STATE

AND:

SAIYAD NABI

Sgt. Naidu for prosecution
Mr. P. N. Naidu for Accused
Date of Judgment: 01.06.2012

JUDGMENT

[1] On 06 September 2010 the accused was formally charged with:

First Count

Statement Of Offence

a. Common Assault: Contrary to Section 274 of the Crimes Decree No. 44 of 2009

Particulars Of Offence

Saiyad Nabi on the 27th day of August 2010 at Nadi in the Western Division unlawfully assaulted Amit Lakhan Sen.

Second Count

Statement Of Offence

b. Criminal Intimidation: Contrary to Section 375 (1), (a), (iii), (iv) of the Crimes Decree No. 44 of 2009

Particulars Of Offence

Saiyad Nabi on the 27th day of August 2010 at Nadi in the Western Division without lawful excuse unlawfully threatened Amit Lakhan Sen with injury to the person of the said Amit Lakhan Sen with intends to cause alarm to said Amit Lakhan Sen.

THE CHARGING SECTION

[2] Section 274 of the Crimes Decree- a person who commits a summary offence if he or she unlawfully assaults another person.

[3] For the offence of Common Assault under section 274 the prosecution must prove the following elements: a) the accused; b) unlawfully assaulted; c) the complainant.

[4] Section 375-(1) (a), (iii) (iv) - A person commits a summary offence if he or she, without lawful excuse- (a) threatens another person or other persons (whether individually or collectively) with any injury to (iii) to the person, reputation or property of any one in whom that person is or those persons are interested- with intent- (v) to cause alarm to that person or those persons. To prove a charge under this section the prosecution shall prove: a) the accused; b) without lawful excuse; c) with intention caused alarm to the complainant.

EVIDENCE OF THE PROSECUTION

[5] The case proceeded to trial as the accused pleaded not guilty to the charges.

[6] The prosecution called two witnesses, namely Amit Lakhan Sen, the complainant (PW1) and Jayan Prakash (PW2). The Prosecution also marked and tendered the caution interview and the charge statement wherein the accused has denied the allegations respectively as Ex-1 & Ex-2.

[7] A summary of the evidence of PW1 is as follows:

a. He came to the shop at around 9.00 am on 27 August 2010. He has 4 staff.

b. At 9.30 he received a call to fix outside tyres by his company.

c. He put $10.00 per tyre fixing. When it was agreed they started work at their yard.

d. then accused came and held his shirt colour and gave a fist on his face and yelled " I will kill you nobody will know.

[8] Under cross examination he stated that:

a. He knows the accused very well.

b. The accused used to buy tyres from his company.

c. He is doing tyre fittings (if it is bought from their company).

d. He admitted that the accused had complained about their tyres blowing up.

e. He said to the accused only that Suva can do something about the complaint.

f. Three tyres were sent to Korea but not yet settled.

g. He said "no" when asked that the accused came and asked for tyre fitting. Later he said "yes" to the same question.

h. when asked whether he told to police that the accused pulled his shirt, he said "Pulled by hand".

i. He didn't run away he was just standing.

[9] PW1 in Re-Examination again stated that the accused pulled his shirt and he did say 'I will kill you'.

[10] A summary of the evidence of PW2 is as follows:

1. He is a wheel alignment technician.
2. He is working for the company for 4 years. PW1 is the Namaka Branch Manager.

100. That day the accused suddenly came and asked to fix outside tyres. They told him they charge $10.00 per tyre.

4. The accused came, pulled PW1's front shirt and started to fist. He was close to PW1.
5. The accused said 'I going to kill him'. He then went out of the shop.
   

[11] Under Cross Examination PW2 told that:

a. He knows the accused as a regular customer.

b. He admitted that the accused told very louder and held hands of PW1.

c. The accused fisted 2 times.

d. PW1 was sitting in the office. There is a door. PW1 was sitting next to the door.

e. He told that he did not say that "the accused was fisting while holding PW1's front shirt" in his statement to police.

f. He admitted that he told police that the accused pulling his (PW1's) hand.

g. He then (... after long pause) said that his statement was not true.(...He later after sometime it is true).

h. He eventually fitted the tyres. PW1 never argued with the accused.

[12] In Re-Examination PW2 said this: That's my statement. I said pushing and hitting. He said "I will kill you".

[13] The Charging statement and the Caution Interview were tendered and marked without objection. The accused has denied the allegations in the charge statement and in the caution interview.

EVIDENCE OF THE DEFEND

[14] At the close of the prosecution case, the defence submitted no case to answer. In my ruling on no case to answer I decided that there is sufficient evidence in respect of each one of the element of the offences to require the accused to put to his defence. I also stated in my no case to answer ruling that I have not decided whether these elements have been proven beyond reasonable doubts. The accused then opted to remain silent. It appears that he has exercised his common law right to remain silent. However, he called one witness namely, Rajesh Kumar (DW1).

[15] A summary of the evidence of DW1 is as follows:

a. He is a taxi driver. He works for Imam Taxi.

b. He worked for Teverua Taxi owner, Saiyad Nabi (the accused).

c. On 27 August 2011 he went to fix some tyres. He couldn't change. Initially they agreed to change. When he went there they wanted to charge. They (accused) used to change at Bondage. Tyres were bought from somewhere. We are their regular customers.

d. He then called the boss, the accused. He came. Branch Manager, PW1 was there. The accused talked to him. PW1 was inside the room behind the counter. PW1 came out and went to the accused. They were talking about the tyres.

e. Boss did not tell "I will kill you" He did not hold the complainant's hand. Saiyad Nabi did not assault the complainant. He was still talking to Saiyad Nabi.

[16] Under cross examination DW1 stated that: Saiyad Nabi is his good friend. He denied the suggestion that he discussed with the accused what to say in court. That day he was at the scene. He was standing about 5 metres away from the complainant. He could hear what they talked.

[17] In Re-Examination DW1 stated that his boss (accused) always using higher volume and that's how he normally use.

ANALYSIS

[18] The accused has been charged with one count of common assault and one count of criminal intimidation. The prosecution shall prove each one of the element, as stated above, of the charges laid in the information against the accused beyond reasonable doubts.

[19] The accused proffered to remain silent. That does not mean he is guilty. He has simply exercised his right to remain silent as advised by his counsel. The court cannot draw any adverse inference from the accused's silence as outlined in Fiji Independent Commission Against Corruption v Mau [2011] FJHC 208, HAC089 2010 (11 April 2011).

[20] The accused did not dispute the identity of the accused. However, he disputes all other elements of the charges. He has denied both the charges.

[21] PW1 in examination in chief stated that that day the accused came to his room, held his shirt colour, gave a fist and yelled 'I will kill you, nobody will know'.

[22] PW1 was cross examined by the defence. Under cross examination PW1 admitted that he did not tell to police that the accused pulled his shirt colour, but pulled by hand. It is important to note that PW1 made the complainant the same day on which the incident took place. He made the complainant when his mind was fresh. But he could not say exactly where the accused held him. He also admitted that Indians hold hand in friendly manner while talking.

[23] PW2 also gave evidence for the prosecution. He in Examination in Chief stated that the accused came, pulled the front shirt and started to fist. He also told the accused yelled 'I am going to kill'.

[24] Under Cross Examination PW2 admitted that he did not say that "the accused was fisting while holding PW1's front shirt" in his statement to police. He told that the accused fisted PW1 two times. He also told that his statement to police is not true (after long pause). But sometime later he said it is true.

[25] In Re-Examination PW2 stated that the accused pushed and hit. The accused said "I will kill you". The evidence of Pushing and hitting is yet different evidence.

[26] PW2's statement to police was marked and tendered the defence as D/Ex-1. In the statement to police PW2 stated that ... I saw him pulling Amit from........ in the counter. Saiyad was holding Amit by his hand ... Amit asked Saiyad to leave his hand but he kept on pulling his hand. Then Saiyad said to Amit whilst pulling him by his hand 'I will kill you.... Saiyad also punched Amit with his fist.

[27] PW1 told to court that the accused pulled his shirt colour and gave a fist. But under cross examination he told that the held him by his hand. Interestingly, PW2 in evidence told that the accused held PW1's front shirt and punched. Under cross examination PW2 told that the accused fisted PW1 two times.

[28] In cross examination PW2 also admitted that he did not say to police that the accused pulled PW1's front shirt. He said he told to police that the accused was holding PW1 by his hand.

[29] PW2 was unable to state where the accused fisted.

[30] PW1 contradicted by himself in stating how the accused held him at that time. PW2 also contradiction by himself in stating the manner how the accused holding the accused as stated above.

[31] The prosecution witnesses were shaken by the cross examination. They contradicted each other on material points. These contradictions are, in my opinion, not minor contradictions. They are material contradictions that affect root of the prosecution case. The evidence of the prosecution witnesses has been discredited. Therefore cannot be relied upon.

[32] In my judgment the prosecution has failed to prove each element of the charges beyond reasonable doubt.

[33] I therefore find the accused not guilty to both the charges and acquit him accordingly from both the charges.

M H Mohamed Ajmeer
Resident Magistrate
01.06.2012