State v Chand [2013] FJMC 214; Criminal Case 863.2012 (28 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 863/2012

STATE

-v-

MAHEN CHAND

PC. Ravi Narayan appeared for the prosecution
Accused appeared in person

JUDGMENT

1] The accused charged with 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]

MAHEN CHAND on the 19th day of May, 2012, at Nasinu in the Central Division, with intent to insult the modesty of Usha Dass by aggressively showing both fists on her face intending that such actions be seen by the said Usha Dass.

2] The case was heard on 15th March 2013. At the trial the prosecution called following witnesses to prove its charges.

3] PW1: Usha Dass, Witness said she can recall 19th May 2012, and she was at Nasinu Police Station’s Bure House around 10am. She was with one lady Parveena. They have been called by police officer because of the arguments that took place, because of the coconut leaf. It was between she and her neighbor Mahend Chand , the accused. In her evidence, she said “On May 19th , The Police Officers asked me why did this argument took place before I could reply to the Police Officer the accused person started talking him .he said to the police officer that we are swearing at him and always fighting. And then I asked the accused person not to lie. I asked him shut up don’t tell lie. Then, he showed his fist on my face “. The witness said the accused’s fist was so close to her face. She further said “I was shocked .Then I stood up...I felt annoyed”. The witness said the officer advised them to reconcile but the accused does not want. There were no cross examination.

4] PW2, Parveena Lata: This witness said on 19th May 2012 he went to Nasinu Police Station Bure House for the meeting. Whilst the meeting was in session, the accused stood up and showed his fist to the complainant, Usha Dass. The witness said she went with Usha Dass to the meeting. Usha is a neighborhood of the witness.

5] In the cross examination the witness said “Sir when they discussing something in the meeting then Usha Dass stood up and she said stop lying and shut up and then the accused person stood up Sir and he showed his fist to the complainant. Sir before I gave my statement to the Police the accused person warned me that he will break my legs and my hands, if I gave the statement to Police Sir”. The witness further said the accused warned her not to give statement against the accused.

6] PW3 Inspector Dominuku Valeibulu of Nasinu Police Station. He said he has been serving 34 years for Fiji Police Post. He was duty on 19th May 2012.He had arrange for a meeting between Mr. Mahend Chand and Mrs. Usha Dass. Because there had been an ongoing dispute between the two neighbors and he thought to call them together and sit down and sort things out. He said “It was a very difficult session because they started to pin point against one another. Actually we did not come to a resolution until after probably 45 minutes of sitting. And we tried to they agreed that should there be any other matter arising between them try and resolve it themselves...I was in a process of I thought everything was going to finalized and I was just about to ask the two parties to come together and shake hand, but in the process they started to say some words in Hindustani, I cannot understand and I can hear some vulgar words I think it’s a swear in Hindustani. ...I heard Mr. Chand saying maichod and at the same time he stood up. Mr. Chand, the accused. And he approached Ms. Usha Dass and almost punched her”

7] In cross examination the witness said “The problem had already been started from way back on Christmas Eve. That was the first problem that started if I can recall between Mr. Mahend and Ms. Usha Dass. And we had sat in May and by the time we sat in May there was about almost 6 or 7 reports against each other. So what I tried to do I tried to call them together and find resolutions to resolve this dispute because they are neighbors. I thought it was part of my duty rather than leaving them just to go at each other I never know what will happen to each other so I was just trying to be prioritize and call this two parties together to meet. Even though in the process this thing has happened Mr. Mahend had tried to assault Ms. Usha Dass but I still believe with myself that they can still calm down and find peace and to go back home and they will be living amongst themselves not us.”

8] By consent charge statement and caution interview tendered as Exhibits. The prosecution closed and the court held there was case to answer. Then, the accused rights were given and he opted to give sworn evidence.

9] The accused: Mahend Chand, He said “The day your Worship the day in question we as neighbors Usha Dass and myself were approved by Station Officer, Nasinu to call in to the Station to have one meeting, whereas there was a dispute between us for a say about 6 months the time we had a dispute. So number of days we stayed there we lodging report against each other and he thought better to come and sit down to the Station and we have a talk. So when we were in the Station Usha was given the first chance she a lady to speak what was her difference. And she came in to speak, she was speaking and we were all listening what grievances she have. And after that she explained all what she had and I was given the chance to talk. As soon as I started talking, I was explaining to the Station Officer and some other Police Officers present what Usha Dass is doing and she came in too. She was mumbling some words, Indian words in her mouth which we can’t understand and she came stand up and she came right to my face and she said you shut up. And I say no it’s my chance to talk, you have already talked, you wait let me talk then you can talk again when you given the chance. And she did not she keep on doing that and came another officer who is not present at the moment. He is passed away Sushil and he calm this lady off and she went to sit down there...I thought at the Station whatever was discussed at that time, the matter was resolved and solved and we went home. I was not aware that they came after and they lodge the report against me that I show the fist and wanted to punch her during the meeting. Suddenly I came to know myself too I walk down to the Station and I lodge a cross report against Usha Dass and she is also being charged for the same offence”

10] In cross examination the accused said it was not heated argument. But he said that he did not fist to the victim.

11] Burden of proof lies on the prosecution. In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonable doubtmust 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 reasonaoubt as to whether the accu 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 the guilt of the accused.”

12] When a court decides a case, it should consider evidence in whole [1987] 2 WLR 1033 the Privy Couy Council ncil observed as follows:-

"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)

13] In the light of above evidence and rules of evidence, I consider the standard of proof. In Miller v Minister of Pensions [1947] 2 All E.R. 372, the standard of proof to convict the accused in a criminal case is clearly discussed by Lord Denning. He went on saying:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."(Emphasis added)

14] I apply those principles to this case. The Parties have previous enmity over damaging telephone line. They admit that they have lodged several complaints against each other. The incident happened at Police station in front of the investigating officer. In fact the officer was the mediator, but both kept on cross talking. The office clearly said that the accused fisted the victim. The accused denied that he fisted, but up to that point he admitted that there were disturbances. The prosecution suggested due interruption the accused fisted the victim. The accused thought all over but later realized that the PW1 has made report over this incident. The accused then made cross report against the victim. PW3 Inspector Dominuku Valeibulu is an independent witness. Though the accused said that investigation officer was one Sushil who is deceased now. But this was not put to the PW3 by the accused. The victim has cross report. It seems both parties have pestered the police by lodging complaints. To iron out creases between the parties, they have been called for a meeting. But it failed and the accused committed this in the police station. I have no reason to disbelieve prosecution version. I hold the prosecution proved its case beyond reasonable doubt.

12] The accused is convicted as charge.

13] 28 days to appeal.

On 28th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu