State v Ahmed [2012] FJMC 259; Criminal Case 104.2011 (7 September 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA
Criminal Case No 104/11

BETWEEN

THE STATE

AND

BILAL AHMED

RULING

1. The Accused is charged with one count of assault causing actual bodily harm contrary to section 275 of the Crimes Decree No 44 of 2009.
   
2. The case was taken up for trial on the 11th April 2011 and the Complainant was called to give evidence. After few adjournments when the case was taken up for hearing today, the prosecution informed Court that they close their case without calling any other witnesses.
   
3. Thus the Counsel for the Accused was invited to make oral submissions on no case to answer and the Prosecution has also responded to the submissions on no case to answer. This is the ruling on no case to answer.
   
4. Section 178 of the Criminal Procedure Decree states as follows;
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."

5. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
   
   1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
      
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
      
6. Section 275 of the Crimes Decree reads as follows;
   

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

7. In this case the Prosecution solely relied on the evidence of the Complainant and no other evidence was adduced to establish the Prosecution case. I have carefully considered the evidence given by the Complainant.
   
8. The Complainant was married to the Accused. During the examination in chief the Complainant stated that on the 24th January 2011 she got angry when the Accused did not wake up when she was trying to wake him up. She said then she tried to commit suicide by tying a cloth around her neck. She said then the Accused slapped and assaulted her instead of preventing her from committing suicide.
   
9. The Complainant was cross examined at length. It should be noted that the Complainant contradicted her evidence during the cross examination on very material points. Further she admitted in Court that the she had given different statements to the Police in two separate occasions. She admitted that she told the Police in her statements on 24th January 2011 and on 11th February 2011 that the Accused saved her from committing suicide in contrary to what she said in Court.
   
10. Further it was elicited during the cross examination that there was a struggle between the Accused and the Complainant in the process that the Accused was trying to stop the Complainant from tightening her neck with a scarf. The Complainant admitted that she fell on the floor and on a settee during the struggle. The Defence suggested that the injuries she received were due to the impact she had when she fell two times.
    
11. The Defence highlighted to Court that the Complainant has omitted several relevant facts when she gave evidence and even in her statements to Police. The Complainant could not successfully explain as to why she made different statements at different times. It should be noted that the Complainant's evidence was abundant with contradictions and omissions. The defence successfully discredited the Complainant's evidence during the cross examination.
    
12. The Prosecution tendered a copy of the medical report of the Complainant as Exhibit 1. Apart from that there is another copy of the medical report filed of record which was tendered by the Prosecution. It appears that there are major inconsistencies in the two copies. In both medical reports the doctor has observed three injuries and in one report the doctor has stated that the bruises observed on the neck are self inflicted and other bruises are two days old and the healing has already began. Surprisingly those comments are missing in the copy of the medical report tendered as Exhibit 1. It was also observed that the summary and conclusions in the two copies are quite contrary to each other and it reads as follows;
    

The medical report tendered as Exhibit 1

"Patient does have bruises/ abrasions but cannot conclude as to actual cause. No signs of blunt trauma to abdomen."

The first medical report

"Patient does have an abrasion on forehead..... bruise on back. There are obvious signs of trauma."

13. Apart from the discrepancies in the two copies of the medical report, the history given by the patient seems to be inconsistent with the evidence given by the Complainant. As per the history given by the patient the Complainant had stated that she was slapped, kicked and punched on her back and stomach. Further it says " patient then tried to choke herself with a scarf." It appears that the history given by the patient is contrary to what the Complainant said in Court whereby she said that she was slapped when she tried to commit suicide.
    
14. Although at this stage the Court need not go in to the merits of the case, it is the duty of the Court to see whether the Prosecution has made out a prima facie case against the accused. In this exercise the Court has to look in to the strength of the Prosecution case with regard to the evidence adduced in respect of the elements of the offence and the reliability of the Prosecution evidence. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable the Court has to decide whether the Court can safely convict the Accused.
    
15. In this case the Defence discredited the evidence of the only Prosecution witness. Although it was evident that there was a struggle between the Accused and the Complainant I am not satisfied that the prosecution could sufficiently adduce evidence in respect of the elements of the alleged offence. Secondly the Prosecution evidence was so discredited by cross examination and I am of the view that the Accused cannot be convicted on the evidence given by the Complainant.
    
16. In the circumstances I dismiss the charge and acquit the accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
07.09.2012