State v Ahmed [2013] FJMC 10; Criminal Case 85.2010 (9 January 2013)

THE MAGISTRATE'S COURT OF NAVUA
Criminal Case : 85/2010

STATE

VS

GULAM AHMED

For Prosecution : Sgt. Lenaitasi
For Accused : Ms. Priya from the Legal Aid

Judgment

[1] The accused is charged for the offence of Annoying Female contrary to Sec 213(1) (a) of the Crimes Decree. The charge reads as follows.

Statement of Offence [a]

ANNYOING FEMALE – Contrary to Section 213(1) (a) of the Crimes Decree No 44 of 2009.

Particulars of Offence [b]

GULAM AHAMED f/n MOHOMMED KASIM, on the 15th day of February 2010, at Wainadoi, Navua in the Central Division, with intent to insult the modesty of MANJULA WATI, made gestures by waving his hand intending that such gesture be seen by the said MANJULA WATI.

[2] The accused pleaded not guilty to the charge and this was set down for hearing. The prosecution called 03 witnesses and the accused gave sworn evidence. The defence also called two other witnesses.

SUMMARAY OF EVIDENCE

PROSECUTION CASE

[3] Manjula Wati (PW1)- The complainant in this case. She said on 15 Feb 2010 she was sitting in her poach. She saw the accused waving at her. She told that to her husband and he also saw the incident. Later she reported the matter to the police.

[4] In cross examination the PW1 said she reported about the accused in 2004 too and during Re-examination said the accused was in his area and was calling her and she did not feel good because of that.

[5] Vishwa Prakash (PW2)- The husband of the PW1. He said on that day he was in his home and saw the accused calling his wife. The PW2 was inside his house and saw the accused whistling and calling the PW1. They made a complaint to the police about that. .

[6] In cross examination the PW2 said his wife has told him many times about the accused and that day he saw what the accused was doing. The Pw2 admitted he was not in good terms with the accused.

[7] PC 3052 Pram Singh ( PW3)- The IO in this case. The charge statement and the Interview notes of the accused were tendered through him and marked as EX-01 and EX-02. Thereafter the prosecution closed their case and this court gave the accused his right to call the defence.

DEFENCE CASE

[8] Gulam Ahmed(DW1) – The accused in this case. He said on that day he took his cows home and no incident happened. He further said on that day he did not see anyone in the PW1's house neither called anyone there. The accused also said the PW1 was jealous of him since he was in good terms with other neighbours.

[9] In cross examination the accused reiterated that he did not wave to the PW1 on that day.

[10] Nishad (DW2) – The wife of the accused. She said the allegations were not true and her husband was a good person. She admitted she was not there at that time in cross examination.

[11] Farina (DW3) – She also said the accused was a good person. In cross examination she also admitted she was not there on that day.

[12] The defence also closed their case and filed closing submission after that. I have carefully considered that submission too.

THE LAW

[13] The accused is charged with the offence of Annoying Female. The offence is described in Sec 213 (1) (a) of the Crimes Decree as,

"A person commits a summary offence if he or she, intending to insult the modesty of any person 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

[14] Considering the facts in this case the prosecution has to prove the following points in this case beyond reasonable doubt.

[a] The accused intending to insult the modesty of the PW1

[b] Utters any word, makes any sound or gestures, or exhibits any object

[c] Intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person.

[15] Viscount Sankey LC in Woolmington v DPP (1935) AC 462 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".

[16] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) His Lordship Justice Temo told to assessors (summing up);

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

[17] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution in this case. If the evidence creates any doubt, this should be given to the accused.

ANALYSIS OF THE EVIDENCE

[18] This court is satisfied with the PW1's evidence. She was clear and confident whilst giving evidence and the defence failed to raise a doubt about her evidence through cross examination.

[19] Also importantly her evidence was corroborated by the PW2 who was also present on that day.

[20] On the other hand the witnesses called by the defence were more or less giving character evidence of the accused. Also as admitted by them, DW2 and DW3 were not present at that time. Therefore I believe they are not in a position to tell what happened on that day.

[21] The accused denied waving at the PW1. He took this position in his statement to the police too. But as noted above there was another witness (PW2) who saw the incident apart from the PW1. I do not have any reason to doubt their evidences.

[22]. Based on the above mentioned reasons I accept the prosecution's version and reject the accused's story.

CONCLUSION

[23] I hold that the prosecution has proved beyond reasonable doubt that the accused committed this offence.

[24] Accordingly, I find the accused guilty for Indecently Annoying Person and convict for that offence.

[25] 28 days to appeal

09/01/2013

H.S.P.Somaratne
Resident Magistrate