IN THE MAGISTRATE'S COURT OF NAVUA

CRIMINAL CASE: 253/2011

STATE

VS

NIRBHAY SINGH VERMA

For Prosecution: - Sgt Lenaitasi
For Accused: - Mr. Jasveel Singh 

Judgement

[1] The accused is charged with the two counts of Common Assault. The charge reads as follows; (Since the complainants and some witnesses are juveniles I have suppressed their names)

CHARGE:

Statement of Offence [a]

[2] 

COMMON ASSAULT – Contrary to Section 274 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

NIRBHAY SINGH VERMA, on the 08th day of October 2010, at Rampur Primary school, Navua in the Central Division, unlawfully assaulted X.

Statement of Offence [a]

COMMON ASSAULT – Contrary to Section 274 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

NIRBHAY SINGH VERMA, on the 08th day of October 2010, at Rampur Primary school, Navua in the Central Division, unlawfully assaulted Y.

[3] Since the accused pleaded not guilty for both counts this was set down for trial.

Summary of evidence

[4] At the trial, the prosecution called following witnesses.

PW 1-Miss X; She is one of the complainants in this case. She said she is 10 years old and in Rampur school. On 08/ 10/2010 she was in school. That day it was Fiji Day celebration and they were in the assembly. The PW1 was talking to a friend when the headmaster (accused) called them. He slapped the PW1 on her left cheek. Then he took them to the office. After the school the PW1 told the incident to her mother. The mother came to school and after that they made a report to the police and a doctor checked her. The PW1 further said after the slapping her teeth were aching. (The medical report was marked as EX-1) 

[5] In her cross examination by the learned counsel for the accused the PW1 said they reported the matter to police only on Monday and she reported that on her own will. 

[6] There was no re-examination of the PW1. 

[7] PW2- Sunila watti; She is the mother of the PW1. She said on 08/10/2010 the PW1 came back from school and told her that the headmaster had slapped her. The PW2 went to see the headmaster. She asked the master the reason for slapping her daughter and he told her these were small matters. She said Saturday and Sunday she was in her home and reported the matter to the police only on Monday. 

[8] In her cross examination the PW2 was shown a letter to withdraw the charge and it was marked as Defence Ex-1. 

[9] In re-examination the PW2 said they were blamed for the incident and she then signed a withdrawal letter prepared by a teacher. 

[10] PW3-Miss Y; She is the other complainant in this case. She said she is also in Rampur School and on 08/10/2010 the headmaster also hit her. She said after hitting Miss X on her left cheek his hand slipped and hit her on the chest. After that the accused took them to his office. The PW3 also went home and told about that to her mother. Then later they reported the incident to Navua police station and the medical examination was conducted on her. (The medical report of the PW3 was tendered as EX-2). 

[11] In her cross examination she said after the incident she reported that to the police on her free will. 

[12] There was no re-examination on PW3. 

[13] PW4- Nita Kumari: She is the mother of PW3. She said on 08/10/2010 her daughter came and told her the head master smacked her on the chest. Then they went to the police and later the hospital.

[14] In cross examination she was also shown withdrawal letter and the defence marked that as Defence EX-2.

[15] In her re- examination she said since all were blaming them she signed the withdrawal letter.

[16] PW5- WPC 3635 Sharoon; The caution statement was tendered and marked as EX-3. The defence did not object marking that. 

[17] Thereafter the prosecution closed their case. Since there was a case to answered the defence was given the rights and the defence called their witnesses.

[18] DW1- Mr. Verma; The accused in this case. He said on that day he was in Rampur school. They were having the Fiji Day celebration. He saw some children talking and he went to them and called them to the office. He never slapped the PW1 or touched the PW3. The accused further said because of this incident he has been suspended from his work.

[19] In his cross examination he said he's got 27 years of teaching experiences and on that day he was keeping an eye on the students. He never slapped anyone.

[20] The accused in his re-examination said he touched the right cheek of the PW1. 

[21] DW2- Jofilit; The dw2 is a dentist by profession. He said the PW1 attended his clinic on 12/10/2010. She was complaining about pain. The DW2 examined her but only noticed her tooth. There were no injuries. The pw1's patient card was marked as Defence EX-3. The DW2 further said if there was any blunt force there should be marks and he could not notice any on the PW1. 

[22] In his cross examination he said from the PW1's mother he got to know about the assault and since there were no injuries he did not write it down. 

[23] In re-examination the DW2 said if there were any injuries he would have noticed. 

[24] DW3- P; He said he is in Rampur school and on that day they were talking. The accused called him, PW1, Pw2 and another Fijian boy to the headmaster's office and nothing happened. He further said he knows the PW1 well and they were in the same class. 

[25] In cross examination he said he did not see anything happening that day. 

[26] In re-examination the DW3 said they were closer and did not see the accused slapping. 

[27] DW4-Q; He said he is in Rampur School and on that day they were talking. The accused asked them to go and sit in the office. The accused then wrote their names. 

[28] In cross examination he said he went first and did not see what happened behind. 

[29] In re-examination the DW4 said they all were close to each other. 

[30] DW5- Vatisera; She said she is a school teacher and at that time the accused was the head master of Rampur. On that day they were having Fiji day celebration and some students were talking. The accused told them to stop talking and then he picked 04 students and asked them to go to his office. The DW5 did not see what happened in the office. Later she saw them coming out from the office. 

[31] In her cross examination she said she was sitting next to the accused and did not see what happened.

[32] DW6 – Sunil Chandra; He said he was the chairman of the school management board and knows the two girls. 

[33] Then the defence closed their case. Only the defence filed the written submission which I have also carefully considered in this case. 

The Law

[34] The accused is charged with two counts of common Assault. The Section 274 of the Crimes Decree No. 44 of 2009 provides that.

"A person commits a summary offence if he or she unlawfully assaults another person". 

[35] Therefore the elements of the charge of COMMON ASSAULT are 

(1) A person unlawfully 

(2) Assault another person.

[36] I now turn to the question of burden of proof. 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.

[37] 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 an opinion that they are guilty. If you have any reasonable doubt as to whether the 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 about the guilt of the accused."
 
Analysis of the evidence

[38] The accused is charged with two counts of assault. First I will deal with the second charge.

[39] The PW3, Miss Y told the court that while hitting the PW1 the accused's hand slipped and hit her on her chest. Her medical report was tendered as EX-2. In it the doctor found that there was a MINIMAL TENDERNESS ON CENTRAL CHEST.

[40] Nor any other Prosecution's witnesses gave evidence about the assault. Only the PW 4 (the mother) mentioned about the assault. She told the court what her daughter told her. Therefore that can't corroborate the PW3's evidence.

[41] On the other hand the PW3 in her evidence in the court did not say the accused assaulted her. In this case she said clearly while hitting the PW1 the accused's hand slipped and hit her on her chest. I quote her evidence. 

"After hitting X on the left chin his arm slipped and hit on my chest" 

[42] I agree with the learned defence counsel's submission that for common assault to be complete, it must have the act or omission on the part of the accused coupled with the necessary intent. I consider the following passage from BLACKSTONE"S CRIMINAL PRACTICE 

An assault or battery must be committed intentionally or recklessly. Recklessness, in this context, means subjective or Cunninham recklessness: This is true both of common assault and of aggravated assaults under the OAPA1861, s 47, or the Police Act 1996(Emphasis added)

[43] In this case the only evidence against the accused for the second assault was given by the PW3. But her evidence mentioned only that the hand slipped and hit her. If I accept only that evidence then I would consider it was more likely an accident than an assault. There were no intentions or recklessness on the part of the accused.

[44] But on the other hand there were no other witnesses to the incident. Even the PW1 did not mention about that in her evidence even though she was present there . DW3, DW 4 and DW5 who were present with them said there was no assault to the PW3. From these evidences I find that the defence has raised a doubt about the incident.

[45] Now I will turn to the medical report. Even though this happened on 08 the doctor examined the PW3 on 11th nearly 03 days after the incident. The prosecution failed to explain the delay.

[46] Therefore for the above mentioned reasons I find that there is a reasonable doubt about the assault . Therefore I acquit the accused from the second charge.

[47] Now I will consider the first charge. The PW1 told that the accused slapped her on her left check. She said it happened on the assembly.

[48] Her medical report was tendered as Ex-1. The doctor found that the injuries were caused by a blunt force.

[49] I agree with the defence that in this case also the mother does not corroborate the PW1's evidence. She said what her daughter told her.

[50] Then again defense totally rejected slapping the PW1 too. The accused said he never slapped the PW 1 on her cheek.

[51] According to PW1 and PW3 this incident happened because they were talking during the assembly. The accused selected four students including the PW1 and PW3 but only the PW1 was slapped on her cheek. Why the accused only slapped the pw1 from the four students is difficult to understand.

[52] There was a medical report showing some injuries to the PW1 on her left face. But it was conducted nearly 3 days after the incident

[53] But then the Dw2 who checked the PW1 one day after the medical test (12/10/2010) in his evidence said he did not see any injuries on the PW1 on her face.

[54] Also it has to be remembered this incident happened on 08/10/2010 a Friday. The complaint was lodged with the police only on Monday nearly 3 days after the incident. The prosecution's witnesses failed to explain the reason for such a long delay for lodging the complaint.

[55] According to the PW1 this incident happened in the assembly. The prosecution did not call any other eye witnesses to this incident.

[56] On the other hand the defence managed to called DW3 and DW4, two students who were present at that time. They were among the students the accused selected for talking in the assembly and called to his office. They said they did not see the accused assaulting PW1 or PW3 in the assembly. Even the DW5 who was a teacher said she did not see such an incident in the assembly.

[57] For the above mentioned reasons I believe there is reasonable doubt about the first charge too and it is not safe to convict the accused for that. Therefore I acquit the accused from the first count too.

[58] 28 days to appeal

01/08/2012

H.S.P.Somaratne
Resident Magistrate