State v Ali [2013] FJMC 213; Criminal Case 345.2012 (28 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 345/2012

STATE

-v-

AZAM ALI

PC Filipe Raymond for the prosecution
The accused appeared in person.

JUDGMENT

1] The accused is charged for following offence namely;

CHARGE:

Statement of Offence [a]

CRIMINAL INTIMIDATION: Contrary to Section 375 (1) (a) (i) and (iv) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

AZAM ALI on the 21st day of December, 2011, at Nasinu in the Central Division, without lawful excuse, threatened Mahen Chand with a cane knife with intent to cause alarm to the said Mahen Chand.

2] The accused pleaded guilty to the charge and case was heard on 01st February 2013.

3] To prove this charge the prosecution called following witnesses.

4] PW1: Mahend Chand; He said on the 31st of December 2011 the accused did chase him with cane knife. This was around 3.30pm, his neighbors were cutting the coconut trees and the leaves they were falling on the fence. His fence is a concrete. It's completely fenced. His wife informed these people are cutting the coconut leaves which is falling on the fence and damaged their fence. Afternoon he was travelling from Lautoka. When he reached home he saw the barbed wires were damaged on the top and the telephone line was broken. Then he went in to ask Usha, neighbor what happened how she did it. He was just outside the fence. When they were talking, the accused was sitting. The witness said "And then Usha denied and he said some few bad words she is being annoying too and what happened then he said that if you are talking too much, he said he went inside the house and he bringing one cane knife...He was talking and I said see you don't intervene to us. We are neighbors we'll stay here long. What happened he went inside the house and he told me that I will cut you with the knife? I told him nothing is stopping you if you want to do it you can proceed and then he came running to my driveway. My wife was there and children were so I told my children to stay away. He might hit me you stay away...He ran inside the house he said I will chop you then I didn't see him, but when he came out I saw a cane knife in his hand... He came right through the gate and then I thought this fellow might, you know, he might attack and I told my wife and children to move away, If I get hurt or I might defend myself and then he might chop and other family might do act some other family" . "I was a bit frightened but if he had an intention he could have that time he could have entered. I was frightened. Though I stayed there I don't not want to run away" The PW1 said.

5] There were no cross examination by the accused though write to cross examine was explained.

6] Shalini Lata was PW2. She was the wife of PW1. She confirmed what PW1, the victim said. She said the accused ran towards their driveway and he had a knife in his hand. She said that the accused uttered "I will chop you, or I will set your house on fire". She further told to the court "I feel very bad because he wanted to chop my husband and I was frightened and my kids were all frightened"

7] PW3 was Constable 4164 Apisalome of Crime Branch Nasinu Police Station. On 31st day of December 2011 he was at the Nasinu Police Station. He interviewed Azam Ali, the accused. This interview tendered as Exhibit 1. After interview he prepared the search warrant to search the accused's house for knife. This search warrant tendered as Exhibit 2. He said "What was the search warrant for? To seize the knife. So how was this knife identified? When I went at the house, Azam was present and also Usha. I showed them the search list and they bring the knife. So who pointed out the knife? Azam brought the knife from the kitchen and gave it to me". The witness identifies the knife in open court and it was tendered as EX-3. The charge statement tendered as EX-4.

8] The court held there is a case to answer. Then the right to call defence was explained. The accused opted to give sworn evidence.

9] The accused; Azam Ali: He said on that day he was in his farm. He said " I also need a knife and fork with me as I was working in the farm Sir. After some time Sir Usha Dass has called the Telecom to fix the telephone wire and suddenly they arrived while I was working on my farm. I was planting cabbage on my farm Sir. Sir the two Fijian boys when they were chopping the coconut leaves it fell on their telephone wire and it was damaged Sir. Sir when Mr. Mahend Chand arrived he got angry on me and I asked him Sir to I ask forgiveness and I told him that the Telecom people are here and they will repair the wire. Sir Mahend Chand replied that you don't know anything about the Telecom wire since you don't have any phone at home. Then suddenly he picked up the stone. Sir when he picked up the stone I had the knife in my hand. I was standing Sir, I did not run towards his driveway as the witness has said and suddenly Mahend Chand called the Police. I came to the Police Station in the Police van and we were told to reconcile at the Police Station. Sir we reconciled in the Police Station but after one month I was charged for this offence"

10] In cross examination the accused said Usha Dass is his family friend, and they were neighbors before. He is a carpenter by profession. He planted dhaniya and cabbage in his farm. The accused admitted Mahan Chand and Usha Dass were arguing at that moment and he was working on the farm. He admitted he did pick up a knife, but he used it for cutting the roots of the coconut tree.

11] The next witness was Usha Dass. She confirmed on that particular day the accused was cutting the leaves of the coconut tree and he was also working on her farm, planting cabbage, french bean, dhaniya.

12] In cross examination the witness said they were neighbors and apart from farming the accused cleans her house, basically he does all the maintenance in the house. She pays $20per day.

13] The accused closed the case.

14] Section 375 interprets the offence. It says;

"375. — (1) A person commits a summary offence if he or she, without lawful excuse —

(a) threatens another person or other persons (whether individually or collectively) with any injury to —

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to do—

as the means of avoiding the execution of such threat; or

(b) directly or in directly, knowingly causes a threat to be made to another person or other persons(whether individually or collectively) of any injury to

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to do—

as the means of avoiding the execution of such threat.

Penalty — Imprisonment for 5 years."

15] The Elements of charge are;

1. A person
2. without lawful excuse

100. threatens another person

4. with intent
5. to cause alarm to that person
   

16] In this case The PW1 Mahen Chand clearly said that the accused threatened him stating "I will chop you". at that time there was a knife in his hand. This knife was recovered by police on the information of the accused and tendered as Exhibits. The defence witness Usha Dass is also proves that the accused was present at the scene holding a knife. The accused's defence holding knife was for farming and cutting coconut tree leaves, which cannot be acceptable, just because the accused admitted there was an argument between Usha and Mahen over damaging telephone line. The accused said he sought forgives from the witness Mahen. Why he asked forgiveness if he did not commit an offence. The Defence witness Usha admitted the accused is a long standing friend and he was a worker of Usha Dass. Thus, the Usha's evidence can be held bias as there is no independency. Usha depends on the accused and therefore she wants to save the accused. I reject Usha's Evidence. Both prosecution and defence evidence strengthened the prosecution case.

17] The burden of prove lies on the prosecution beyond reasonable doubt. I have no reason for disbelieve Mahen. The accused said that they have reconciled at the police station. Lamentably, this offence cannot be reconciled under section 154 of the Criminal procedure Decree 2009. Therefore, it has no legal effect.

18] For forgoing reasons, I convict the accused as Charge. I now call mitigation before sentencing.

19] 28 days to appeal.

On 28th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu