State v Chand [2012] FJMC 225; Criminal Case 163.2012 (21 September 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

Criminal Case : 163/2012

STATE

VS

RAJESH CHAND

For Prosecution : Sgt. Freddy
For Accused : In person

Date of Hearing : 17/09/2012
Date of Judgment : 21/09/2012

JUDGEMENT

[1] The accused is charged with Annoying Person contrary to s. 213(1) (a) of Crimes Decree No. 44 of 2009.The charge reads as follows.

STATEMENT OF OFFENCE (a)

ANNOYING PERSON: Contrary to Section 213(1) (a) of Crimes Decree No.44 of 2009.

PARTICULARS OF OFFENCE (b)

Rajesh Chand, on the 08th day of April, 2012, at Alta Raiwaqa, Navua in the Central Division, with intent to insult the modesty of ROHIT KUMAR, uttered words as "magaitinamu and fuck you", meaning "Mothers vagina", intending that such words be heard by the said Rohit Kumar.

[2] The accused waived right to counsel and pleaded not guilty for the offence. Therefore this was set down for trial on 17/09/2012.

SUMMARAY OF EVIDENCE

[3] At the trial the following witnesses were called by the prosecution. PW 1-Rohit Kumar; He is the complainant in this case. He said on 08/04/2012 they returned from temple and parked the vehicle near the accused's drive way. Then accused came and uttered 'Maichod, Magatinamu' at him . The PW1 went away in his vehicle since he feared for his safety.

[4] The accused was given the chance to cross examine the PW1. He asked the PW1 only where he parked the vehicle and the PW1 replied that he did not do it in his drive way.

[5] PW2- Mukesh Chand; He is the brother of the accused. He said on that day he came
with the PW1 in his vehicle and it was parked in main road. Then the accused came and told the PW1 that he did not want the vehicle parked there and said Maichod to him

[6] Again the accused asked only about where the vehicle was parked. The PW2 replied that
it was in main road.

[7] PW3-PC 4349 Tevita: He was the interviewing officer. The caution interview was marked as EX-1.

[8] PW4- PC 2562. Thagard: He is the charging officer. The charge statement was marked as Ex-2. Thereafter the prosecution closed their case and since there was a case against the accused, the rights were given under s. 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence.

[9] DW1- Rajesh Chand; The accused in this case. He said on that day the PW1's vehicle was parked in his drive way. The accused saw that and asked the PW1 about that. Then the PW1 swore at him and the accused did the same thing.

[10] In cross examination the accused said the vehicle was in main road. Answering a question from the court the accused said even though the PW1 swore at him he did not complain about that to the police. The accused did not call any other witnesses and closed his case.

THE LAW

[11] The accused is charged with Annoying Person contrary to s. 213(1) (a) of Crimes Decree No. 44 of 2009. That section reads as follows

(1) A person commits a summary offence if he or she, intending to insult

the modesty of any person:-

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

[12] In view of the facts in this case the elements needs to be proved are:-

1. The accused,
2. Intending to insult the modesty of any person
3. Utters any word
4. Intending that such word or sound shall be heard by other person
   

[13] In Woolmington v DPP (1935) AC 462 Viscount Sankey LC stated 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".

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

"The standard of proof in a criminal case is one of proof beyond reasonable doubt/b>. 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 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 aboe thlt of the accused."

[15] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecutif theence creates any doubt, that should be given to t to the ache accused.

ANALYSIS OF THE EVIDENCE

[16] The complainant said the accused uttered Maichold and Magitinamu. The accused was given the chance to cross examine the PW1. The accused failed to ask a single question about that.

[17] The PW1's evidence was corroborated by the PW2. I have no reason to doubt the PW2 since he is the brother of the accused. Even in his cross examination the accused only asked about where the vehicle was parked at that time.

[18] The accused in his evidence said the PW1 parked the vehicle in his drive way and he went to ask about that. Then the PW1 swore at him and the accused did the same thing. But he admitted that up to now he has not made a complaint about that to the police.

[19] The accused did not call any other witnesses to confirm his story whereas the PW1's version was confirmed by the accused's own brother.

[20] Based on the above mentioned reasons I accept the PW1's version and decide that on that day the accused swore at the PW1.

CONCLUSION

[21] Therefore I hold that the prosecution has proved beyond reasonable doubt that the
accused committed the offence of Annoying Person.

[22] Accordingly, I find the accused guilty of Annoying Person contrary to s. 213(1) (a) of the Crimes Decree.

[23] 28 days to appeal

21/09/2012

H.S.P.Somaratne Resident Magistrate