State v Naidu [2013] FJMC 225; Criminal Case 267.2011 (3 June 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON

NADI CRIMINAL CASE NO. 267 OF 2011

BETWEEN:

STATE

AND:

SHRI NIWASAN NAIDU

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date : Monday 03 June 2012

Appearances
For The State : WPC Ana
For Accused : In Person

JUDGMENT

Introduction

1. The Accused was charged with one count of Causing Actual Bodily Harm. The charge reads as follows:-

Statement Of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of Crimes Decree No. 44 of 2009.

Particulars Of Offence

SHRI NIWASAN NAIDU on the 13th day of March, 2011 at Nadi at the Western Division assaulted GAYATRI NAIDU causing her actual bodily harm.

2. He pleaded Not Guilty to the charge. As such, the matter went on trial.

Evidence Of Prosecution

3. At trial Prosecution led oral evidence of two witnesses namely Gayatri Devi, Complainant (PW1) and Alexandra Kunayal, doctor (PW2).

4. PW1 in evidence in chief stated as follows:

(a). Accused is her ex-husband. She has 3 daughters. She's staying with her ex-husband and her 3 daughters.

(b). On 13 March (2011) he wanted to take her youngest daughter forcefully, because he wanted to take her alone. She didn't want to. He then assaulted her, pushed her, forced her and fell down and got a bit hurt. He punched her once. On 14 March she was medically examined.

5. In cross examination PW1 stated that:-

(a). 13 March is significant in her life because it was her younger daughter Arkancha's birthday.

(b). She is not aware that on 13 March 2011 he took all 3 daughters to Nadi Temple at 8.30 in that morning because they were not in talking terms.

(c). She gave her written statement to police on the same day the incident happened.

(d). When she was giving bath to her daughter Arkancha he seized the daughter away from her. She was standing near the wash tub then.

(e). She said "no" to the suggestion that he told you that he wanted to take the daughter and you pretended to give your daughter a bath.

(f). She said "can't recall" when asked to describe how she got hold of the daughter.

(g). She could not tell where he poked.

(h). She admitted that she told police that "he pulled me then started to poke me at the neck 3 times".

(i) She said she can't recall which hand he used.

(j). When it was put to her that this incident never happened. She said "can't recall".

6. PW2, the doctor gave evidence. He said that he examined the Complainant on 14/03/2011. The Complainant told him that she was allegedly poked by her husband. He could not provide original Medical Report of the Complainant to Court.

7. During cross examination PW2 stated the Complainant had marks on the middle of the neck.

Defence Evidence

8. The Accused (DW1) gave evidence for himself. He didn't call any other witnesses to support his case. Further, he produced in evidence the Complainant's (PW1's) and the doctor's (PW2's) statements to police marked as D/Exhibit 1 and D/Exhibit 2 respectively.

9. DW1 stated in evidence that 13 March 2011 (date of incident) was a special day for him because that was his younger daughter's Arkancha's birthday. That day he got up early in the morning, gave bath to all 3 daughters and took them to the Nadi Temple. Afterwards, he wanted to take all 3 daughters to McDonald. But other 2 daughters didn't want to go. Finally the younger wanted to go with him to McDonald. At that time the Complainant took the daughter for a shower. After that she left the daughter in the wash tub and told her "stay in the tub and see what I'm doing" By this time he pulled the daughter out of her and brought her to his bed room and got her dressed up. The Complainant followed him to his room. He denied punching or poking the Complainant at any time. He told that when he pulled the daughter she fell down as the floor was wet. He further told in 2010 the Complainant was caution interviewed for assaulting him and the matter was reconciled.

10. In cross examination DW1 denied poking or pushing the Complainant. He stated the injuries in the Medical Report are not correct.

Analysis

11. The Accused has been charged with one count of assault occasioning actual bodily harm, contrary to Section 275 of the Crimes Decree 2009.

12. It is alleged that he assaulted his ex-wife on 13 March 2011 at her house. Both of them are staying in the same house though divorced.

13. PW1 stated in evidence that the Accused assaulted, pushed, forced her and she fell down and got a bit hurt.

14. During cross examination PW1 could not describe how and where the Accused punched, but told she had injury on the side of her neck. She also could not describe how she was holding the daughter and which hand he used to assault her. However, she admitted as telling to police that "he pulled me then started to poke me at the neck 3 times".

15. PW2, the doctor stated in evidence the victim had injury in the middle of her neck. He could not produce original Medical Report to Court.

16. In order to prove assaulted the Prosecution must prove beyond reasonable doubt that:-

(a). The Accused;

(b). Assaulted the Complainant; and

(c). Caused actual bodily harm.

17. Element 16(a) as stated above has not been disputed by the defence. However other two elements are seriously disputed by the defence.

18. The crucial element of the charge is that whether the Accused assaulted the Complainant on 13 March 2011.

19. The Accused's version of the incident was that she fell down and she may have received injury as a result. He totally denied the allegation that he assaulted the Complainant.

20. In her statement she told to police that the Accused poked her at the neck three times. But in Court she said nothing about poking 3 times.

21. In Cross examination she told she received injury on the side of the neck. In contrast, PW2, the doctor told that the victim had injury in the middle of the neck.

22. PW1 could not state which hand the Accused used, how she got hold of the daughter at that time. More importantly she said during cross examination "can't recall" when suggested that this incident (assault) never happened. She answered most of crucial cross examination questions that she can't recall.

23. It is to be noted that PW1 answered in an evasive manner during cross examination. She was not consistent in her evidence. The Court can give little credit to her evidence.

24. The Accused gave clear and straightforward evidence. He answered promptly and clearly to cross examination questions. He was consistent in his evidence. I therefore accept defence version of the incident.

25. For the foregoing reasons I find the Accused Not Guilty to the charge of assault causing actual bodily harm contrary to Section 275 of the Crimes Decree 2009.

I acquit him accordingly.

Dated at the Nadi the 03rd day of June, 2013

............................................

M. H. Mohamed Ajmeer

Resident Magistrate