State v Chand [2013] FJMC 212; Criminal Case 173.2012 (28 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 173/2012

STATE

-v-

MAHEN CHAND

PC Ravi Narayan for the prosecution
The accused appeared in person

JUDGMENT

1] The accused have been charged for following offence namely;

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

USHA DASS on the 1st day of January, 2012, at Lot 9 Omkar Road, Narere, Nasinu in the Central Division, with intent to insult the modesty of Usha Dass uttered the words "Hey, old woman, come outside I want to fuck you, and this people want to rape you, you bitch" meaning 'female dog' intending that such words shall be heard by the said Usha Dass.

2] The case was heard on 15th March 2013. The prosecution called following witnesses to prove their charges.

3] PW1: Usha Dass: She said the accused Mahend Chand is her neighbor. Atish and Mahend Chand's sister. Hawatt. The Priest are also her neighbors on 31st December 2011, at about in the evening she was at home. her sister was there with her. She said "I was about to make dinner since it was after Christmas and we were sitting down and talking Sir. on New Year's Eve the accused Mahend Chand his son and some of his family members were drinking and they were drunk Sir and they started swearing at me. ...Sir first the accused person sweared at me then his wife sweared at me and then his son...he said maichod, he said bajaru. Sir he also that he will bring some thieves into my house and he will set fire to my house Sir, he was also insulting my religion. He said magaichinamu halle luia. He said that we'll see who is going to stay in this house." Accused identified by the witness.

4] She was cross examined at length. In cross examination she said that on the 31st December, the accused was heavily drunk. She does not always bother about the accused's house. She did not damage the accused's telephone wire and the fence. The witness admitted later the accused again charged for indecent exposure in June 2012. She said the accused fights with all the neighbors but they don't report the matter. As he always threatens the neighbors, that is he is an ex-policeman Sir. And he also looks for witnesses to bring to Court.

5] PW2: Rajnesh Prasad: This witness said he stays at Nadera with mother and cousin. On 31st December 2011, in the evening around 6, he was with his mother, and Azam Ali. And at around 2am in the morning, the accused person blasted his radio with loud music. And I reported this matter to the Police Station. He reported matter to the police.

He was questioned:

"On the 1st of January 2011 Rajnesh you remember did I make any swear to your mother? [Witness is keeping silence for long]. Sir I don't remember."

6] By consent Exhibit 1 and 2 – Caution Interview and Charge Statement were tendered and prosecution closed. Defence was called.

7] The accused: Mahend Chand; He said "Sir like the witnesses blaming that I was drunk, at that moment only my son and his friends from Nivis Motors were having the party and waiting for the New Year to eventuate. Suddenly when it was after 1 or after 12 and they started beating the drums ..Midnight after midnight. Just finishing of 2010 your Worship. And what happened this Usha Dass and her family were sitting in the porch and they did not like what we were doing. She always bothers us what we doing in the compound. She always comes and opens the windows and wants to listen what is happening in my house." The accused explained their enmity, how it begun. The accused denied that he swore Usha. He adduced "What she said is all false. Nobody swear to her on that date."

8] In cross examination he admiited their previous incidents. But he said in the New Year's Eve he was not in the party mood. he was just sitting down and looking at these people ( son and friends) and enjoying the party. He was not drinking on that date.

9] DW2 Shalini Lata: She is the accused's wife. on the 1st of January 2012, on New Year's Eve her husband, her son and his friends were sitting in the porch. They were drinking, but her husband was not drinking. We were celebrating New Year at 12am, her husband, her son and his friends they started beating the drum. And after a while the Police Officers arrived and they asked us to stop making noise since Usha Dass has complained that we are making a lot of noise. The witness explained how they were enemy.

10] In cross examination the witness said the complainant and one Azam passed comments on her. This happened before the incident. Complainant has been charged. She said she did not want to lie to save her husband there was no such incident on New Year's Eve.

11] The Pw1 said that the accused swore at her in the New Year's evening. At that time her son and one Azam were present. The Son Rajnesh Prasad gave evidence saying he can't remember that the accused swore at his mother. He took long time to say this. It seems that the victim did not tolerate that the accused's family were enjoying at New Years Eve. Her story was not supported by the PW2, her son's evidence. They have series of complains against each other. It is unsafe to convict a person on sole PW1's evidence. I hold the prosecution failed to prove its case this time beyond reasonable doubt.

12] The accused is acquitted and discharged.

On 28th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident-Magistrate-Nasinu