State v Sharma [2013] FJMC 424; Criminal Case 1575.2012 (16 December 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1575/12

State

V

VISHAL VINAY SHARMA

Prosecution: Sgt Jiten (Police Prosecution)
Accused: Present – Counsel –Mr M. Anthony

Judgment

Introduction
Vishal Vinay Sharma is charged with Act Intended To Cause Grievous Harm, contrary to Section 255 (a) (b) of the Crimes Decree 2009.

The Particulars of Alleged Offences is as follows:

"Vishal Vinay Sharma on the 12th day of November 2012 at Ratu Mara Road, Samabula in the Central Division with intent to cause bodily harm to Rusiate Baleilevuka unlawfully wounded the said Rusiate Baleilevuka with an iron rod."

The prosecution in the charge had stated section 258, however the Court noted the charge was framed using Section 255 which is indictable Therefore the Charge was amended accordingly.

This Court has been given jurisdiction by the High Court to deal with the indictable offence.

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "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 doubt. The law would fail to protect the community if it admitted 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, but nothing short of that will suffice."

The Evidence

The prosecution called 3 witnesses. At the end of the prosecution case this Court ruled that the accused had a case to answer. The options were explained to the accused. The accused gave sworn evidence. The Defence called 2 other witnesses. The Caution Interview of the accused was tendered and admitted as evidence by this Court as it is found to be freely given and under no duress or oppression. The caution interview of the accused person was conducted at the police station in the presence of his father. The medical report and the Iron rod were tendered as exhibits. This Court has noted all the evidence that was given and all the documents that were tendered.

Prosecution Case

Pw-1- Rusiate Baleiluka

Preferred language – English. Sworn on Bible in English.

"Resides at Tuirara, Tovata. 12th November 2012 was going home in Narere Bus. Caught bus at bus stand (Suva) caught Nasese Bus. Sat at 3rd last seat from back.We left Suva. Bus going at high speed, I was concerned of speed going at. Lot of passenger in bus. Bus was full. Bus was chasing Tebara bus in front of us even at bend at full speed.

At FNU (Samabula) – bus almost tumbled at bend. We almost bumped a truck. Bus on left and almost tumbled – passengers were scared. Passengers were complaining of music, bus at speed.

I rang the bell for bus to stop, bus did not stop. It stopped at red light. I asked him to lower the volume and stop bus to go to police station. Speed was fast. Speed not supposed to be driven at that speed.

When I rang bell. It did not stop. I shouted to stop I went to front. He did not stop when I tapped his shoulder for him to stop. Bus at police station Samabula then.

He took iron Rod below his seat he struck below my left thumb. (shown with hand size of pipe) Can recognize pipe. (Shown a pipe). Identified the pipe. Sharp end landed on arm and hand.

1st strike he wanted to strike head. I lifted arm he hit left arm it started to bleed. It was painful. He struck again. I tried to protect myself. When he struck me bus was slowly moving. Kept moving.

In second strike he hit my head, he wanted to cause grievous harm. It landed on right side. Cut my ear felt pain. In sleep feel pain had deep cut.

When he wanted to strike other side I ducked. He wanted to cause me grievous harm. He came for my head.

One guy beside us stopped the incident. When I went to sit he continued to drive up to Nabua Police Station. As bus driver he is to serve public. Went to police station at Nabua. Took vest to stop bleeding. At Nabua they told me to go to Samabula. Incident at 5.45pm. I went to Doctor did medical. Doctor was concerned with injuries to head. Gave report to police at hospital still bleeding.

Doctor did medical report, gave report to police. Doctor did plaster on ear.

(Shown medical report)- can recognize the report is mine. Consent to Investigating Officer tendering medical report. Went to police station I gave them medical report they took police station.

Driver who drove bus is in court. (Witness indicates accused in accused box)."

Cross examination.

"Understood oath I took. I boarded Nasese bus on 12/11/12. Bus at speed. Bus driven dangerously. Bus almost tumbled when we left bus stand.

I approached driver at FNU. It was busy at that time.

I rang bell to stop bus not to stop anywhere. I did not intent to get off the bus at red light. I was going home happened so many times. I approached driver was seated 3rd row from back. I warned the bus driver.

I did not hit bus driver. I tapped him people stopped incident I took seat. Bus drove to Nabua bus station. He did not strike to defend himself. Other witness's in bus. Accused drove to Nabua Police Station. Gave report to Police straight away. Accused did not report to police at Nabua. Not aware police did not hear accused. Went to Doctor. Cuts on arm, head and part of ear.

Doctor checked head and arm, said can be poisoned the scar on head. Cut on arm for a month- scar still there. Doctor gave anti-biotic. Can still feel dizzy sometimes. No permanent injury and disability."

Re- Examination

"When I work, feel head ache and dizzy. See doctor for head injury have head ache from loud music. When playing, have head ache received mark scar on hand. I reported at Nabua. Accused also reported at Nabua . He claimed I punched him 1st.

They took our statement.

Prosecution witness – 2

Sereana Baleilevuka

Preferred language – English, Sworn on bible in English

Shop assistant (Prouds), Tovata, Makoi

"On 12/11/12 – on my home boarded bus at 5.45 after work on my home. Seated in bus. bus stand Edinburgh drive up Walu Bay, at Conner of Edinburgh drive-up Calvary temple was fast, high speed volume of music high. He tried to go past Tuirara and Tebara bus. Once we came up, Carpenters Rubbish truck in front. He was about to hit rubbish truck, he brake suddenly. I heard bell ringing somebody shouted from back of bus.

I set on 3rd seat in front – right side. When I looked at back saw brother telling driver to stop. Complainant tapped drivers shoulder once. I shouted junior bus did not stop. When Junior kept saying to stop at FNU. He picked rod up started to attack my brother. He picked rod beside him. Small rod sharp in front.

(Can recognize rod is the same rod) this is long was bit short. Driver beat him twice. Complainant tried to cover with arm was cut. Complainant tried to protect self.

Second throw on his head and ear. Cut beside ear when going towards Samabula. Police at bus stop. Driver refused to stop went to Nabua bus stopped at Nabua Police Station police told passengers to get out. We went as witness's to police. Police took our statement. Bus driver in court it witness's pointed to accused."

Cross examination.

"Understood effect of oath. Boarded same bus as complainant is my brother. Not protecting brother. Care for brother. Was busy traffic travelling towards Samabula driver at speed.bus parked at red light bus was moving after red light I was seated in bus. Heard someone yell was my brother he walked to front. He tapped driver to stop. Traffic busy brother did not hit driver first he tapped his shoulder. Not exactly the same iron rod. Bit shorter. People push brother away from incident . If driver fought with complainant could be accident. Other witness's asked complainant to go to his seat. Bus driver drove to Nabua Police station. They asked to go to Samabula. Not aware of complainants report."

Re- Examination

Complainant tapped drivers shoulder he refused to stop nobody punched the driver.

Prosecution witness – 3

PC Koloniu

Sworn on Holy Bible in English. Preferred language – English

Samabula Police station.

"13 years in police force served in mobile, Nabua Raiwaqa and Samabula. In uniform branch. 12th November 2012 in Samabula. On duty received record instruction on report informed accused . report of assault suspect is here did interview of accuse. Before interview received iron rod.

(Shown iron rod) Can recoginise iron rod was used by bus driver. Received this at police station. Handed by officer. Defence – no objection.

Prosecution exhibit – 1

Iron rod. Record of medicial report of complainant. I – Taukei. Can recoginise medical report. Can identify medical report given to complainant will tender medical report.

Defense – no objection.

Prosecution exhibit – 2 – medical report.

Did interview Of accused. Also received statement of complainant and witness's. interview at Samabula Police Station charge room. Father of accused present. Accuse was given opportunity to consult lawyer. No threat to complainant no intimidation. Accused was angry what he had done to passenger we cooled him down before interview no other report. Read back content to accused he countersigned, I signed.

(Shown caution interview) - is the caution interview original. I wrote this."

Prosecution exhibit – 3 – caution interview.

Cross examination.

"Recall events of 11/11/12 received compliant of assault. Complainant appeared guilty for what he had done. Compliant wanted to complain to police. Gave right to counsel. Was diwali eve. I did not say that it will take 20-30miniutes. I do not recall saying " do not about lawyer.

Did not make arrangement for interpreter. Cannot recall accused said he acted in self defence."

Re- examination

"accused did not complain before, during or after interview. Interview in English. Accused understood English. Level of education Form 4. Accused said will call father. He wanted his father. Nobody else."

Charge sheet by consent. Prosecution exhibit – 4

Defence Case
Defence witness – 1
Vishal Vinay Sharma

Preferred language – Hindi, Sworn on Ramayan in hindi, Bus driver, 9 miles, Davuilevu

"12th November 2012 was driving bus at 5.30pm at bus stand (Suva) was at base.

Passenger gave $1.00 fare, fare was $1.15. He got in anyway. Checker asked for 15 cents. Passenger was complainant. Moved bus at 25 to 6. 65 passengers in bus going to Tovata.

No incident. A rubbish truck had broken down, Carpenters. I slowed down. Applied brake could not go onto other lane. Only one passenger reacted, he rang the bell. He yelled at stop bus swore in Fijian "Magaitinamu".

Happened at last bend before lights at Samabula traffic was flowing. Bus stop at FIT. 100 meters away bus stop saw passenger coming to me. He tapped my cheek and pulled the collar. I stopped bus and tried to get up. Passenger moved to back. I set moved bus about to reach light passenger came to me pointed finger on face asked to stop bus. Did not cross light fully, still in middle. Told him will not stop here came not go to Samabula Police station. He yelled me to get off. Stop the bus. I did not stop the bus. He punched my head, bus was moving. I was in driver's seat.

I hit side of bus mirror. He tried to punch when I picked up the rod. He tried to hit me, he then punched me I fell on driver's seat. Driver's seat fell down. Bus rolled back and hit Central Transport bus. It hit and stopped. Passengers stood and watched the ones In front stopped the fight. He sat in his seat. I took bus to Nabua Police station. At Nabua Police station went to police station. Went to police, police took him in. Police told me to return fare. I came to return fare. Police by then took his report.

I reported to police they told to report to Samabula Police station. Police gave medical. did medical at Samabula, took down to Samabula. Lady police took me in, took my report. After 10 or 9 they kept me at Samabula they locked me.

Father was present. Was locked for 2 days. No Indian police. Do not understand English well level up to Form 4. If Indian police officer will understand properly. I thought I will be interviewed and released.

Police were not rough with me. Gave report to police they did not charge him. Had swell on head. Samabula Health Center. nurse did not touch me. Filled in prescription and gave back to me. Went to Doctor Maharaj had received injuries to head. Told to rest by doctor.

Was home for 1 week to recover, recovered now. Did not go back to police to check. Thought police had charged him."

Cross examination

"Told checker to ask him pay to 15 cents more. I lodged report he later gave 15 cents. Incident at last bend At Edinburgh drive, Suva to Nausori. Before that road on left. Some trees there. A bus stop at FIT light. Place to park bus at bus stop. I thought I might be assaulted there. No way to go to Samabula Police station. Nabua was easier to me. Could not go to Samabula Police Station, where to park bus to go to Samabula Police station.

I went to Nabua Police station. I drove bus in same area next week. Witness was taken in 1st I am telling the truth. Was given medical report given to Samabula police station.

Did lodge report no Indian officer present. Both reported at Nabua and Samabula. No medical report here, in file at home. File with counsel should in file."

Defence Exhibit 1 – Medical of Accused

Re- examination

"Lodged reported at Nabua. Seated for 1hour witness did medical was given form after witness did his medical. Then was given form. Lady took report, told to wait for senior officer. He came later. Locked me in cell for 2 days. Soon after 1 was released did medical. Complainant hit me in the head, did medical for that with doctor."

Defence witness – 2

Saiyad Ahmed

Driver, 8 miles, Makoi

Preferred language – Hindi, Sworn on Koran in Hindi.

"Understand effect of oath. Driver with RMC. Recall events of 12/11/12 incident in bus, was in bus travelling home.

Driver was going to 8 miles. Suddenly passenger pulled the bell. He was going up the hill, not at speed. At normal speed he went up to driver. Music was not loud and bus not fast. He complained of music and speed. I was seated at the back (last seat).

Passenger pulled collar of driver. Driver was driving bus, I said for him not to do that. 65 passengers in bus. He did not listen to me. Bus in motion.

He hit driver he went down bus rolled back at back seat saw all incident. Nobody said anything. I stood up and saw it. If central bus not at back it will go down the alley.

Driver pushed him back and took bus up. He could not stop there. Driver took bus to Nabua Police station.

Complainant went back after people caused communication. Complainant said he knew when I told him what he is doing. Driver returned fare. I do not know driver. I told him I will give evidence had given my contact to him. My wife and staff nurse to witness.

Complainant went to station, driver was returning fare when witness went to police station. I went to police station, told to wait . Police dealing with witness took son home not well."

Cross examination.

"Saw complainant go to accused. Pulled his collar from where I was seated. Could see from rear vision saw from standing also rear vision. Held collar and poked his face. Rear vision. 1 feet long. Will not see everything in rear vision.

Re examination

"Saw in rear vision complainant pulled collar and poke driver and punched his head. Stood and yelled at complainant. He came back and driver stopped at Nabua Police station."

Defence witness- 3

Isoa Tavina

Preferred language – English, Sworn on Holy Bible in English.

Maintenance worker, Tovata

"Recall 12th November 2012 in bus at 5-6pm going from Suva to home.

Caught bus at bus stop Nasese bus. Bus was full, 60-65 people seated on 3rd last seat (left). As we went up Edinburgh drive up to traffic light at Samabula a truck, last turn up the hill, brake down on 2nd lane. Driver was rushing did not see truck stopped all of a sudden. Complainant was beside me. He pulled the bell and started to yell. No bus-stop there after light bus stop. Bu did not stop green light. No idea of complainant. Was yelling to driver to stop the bus. Complaint went up to driver, to stop the bus as bus moving driver was forcing to stop at bus stop, complainant tried to punch accused. Saw complainant punch the driver. Driver tried to stop him. He lost control of bus. Full bus. We yelled for complainant to stop. Driver controlled the bus. Driver stopped on brake, no incident. A guy in front also going for driver. We tried to calm him.

He did not come back and sit beside me.

We told him not to punch driver. He said sorry for that. Do not think bus was speeding was normal. 1st the saw complainant is new. Someone yelled to stop. Accused stopped at Nabua parked bus and got off and complained to police. Busy at FNU. Not possible to turn into Samabula Police station."

Cross examination

"He went straight to driver. Confronted from side of driver. He pulled shirt said stop the bus he punched the face.

I was standing up. Saw incident other passenger also standing up. People on other side standing up. Can see what is happening driver tried to stand up he lost his foot on pedal."

Re- examination

"Was standing up where seated took 3 steps in-front."

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence given by all the witnesses in this case. The onus is on the prosecution to prove all the elements of the offences committed by the accused. The issues of identification, date and time of the offence are not disputed and as such not an issue in this case. The main issues are whether the accused assaulted the complainant and hit him with an Iron rod and intended to cause grievous harm.

For ease of reference this Court has placed in this judgment the evidence that was given and what transpired in Court and what was exhibited. The version of events from the prosecution witnesses is consistent that the driver was speeding and nearly caused an accident. The music was loud. The complainant stated that he approached the driver and asked him to slow down and stop. The accused struck him with an iron rod. The Iron rod was exhibited and tendered. There are some minor discrepancies in some of the Prosecution evidence but is not fatal to cause any doubts in the Court mind. The prosecution witnesses' version is that the complainant poked the driver to stop. They also told the Court that the complainant did not punch the driver, the accused. This Court also notes the relationship between PW-1 and 2. Taking all the evidence in totality this Court finds that the prosecution witnesses were credible and held themselves in cross-examination. The Court finds them to be credible witnesses.

The accused also admitted using the iron rod to police he was under no compulsion or duress to do so. However he told the police he was punched. The defence witnesses, which included the accused also gave similar versions. The accused stated that the complainant gave less fare, imputing that that's when the problem started with the complainant. The accused in addition mentioned that the complainant swore at him. This Court notes that the accused stated in evidence that he swerved from a Carpenters Truck. This in a way indicates to the Court and supports what the prosecution witnesses were saying that an accident could have been caused.

This Court finds that the complainant was a concerned citizen who confronted the driver when he saw music blurring and the vehicle being driven at a speed. DW-2 also stated in his evidence that the complainant complained about loud music and the speed of the bus. He is consistent with what the prosecution witnesses are saying. From the evidence in Court this Court finds that the Complainant acted reasonably. He asked the driver to stop and wanted to take him to the police. He did not stop and go to the nearest police Station (Samabula). While this Court notes that the driver had 65 passengers in the bus. He would have wanted to complete the journey but after such a situation why he did not go to the nearest station when he had the opportunity to do so, is a question that he only can answer. Especially when he was punched and he fell of his driver's seat and momentarily lost control of the bus. While he tried to explain it was difficult for him to go to Samabula Police Station. This Court finds that the incident happened before Samabula Police Station and it was easy for him to go there. If he was attacked by the complainant he should have stopped the bus. He had one bus stop near FIT to stop at, which was close to (opposite) Samabula Police station. He did not. He also had other bus stops in between to stop and get the police. He drove all the way to Nabua and then went to see the police, which again was at the complainant's insistence.

The other evidence of Dw-3 worthy to point out is "Driver was rushing did not see truck stopped all of a sudden." This Defence witness while not stating that the driver was speeding put it that the driver was rushing. This Court understands that when you rush with a vehicle it means to speed. The actions of the driver according to the defences own witness would have caused the scenario as depicted by the prosecution witnesses. The driver was speeding and nearly caused an accident. Later the same witness (DW-3) stated in his evidence that the driver was not speeding. However earlier he stated he was rushing, he did not see the truck and stopped all of a sudden. The inconsistency in evidence of DW-3 is glaring and this Court for those reasons does not believe his version of events.

None of the other witnesses apart from the driver mentioned he was sworn at. Even DW-3 told the Court he heard the complainant yell to driver to stop, he did not mention swearing. This is consistent with what the prosecution witnesses are saying. No one apart from the driver heard the complainant swear at him. From the evidence given in Court this Court does not believe the defence witnesses and does not believe that the accused acted in self defnce.

This Court believes the prosecution witnesses and finds that the prosecution has proven the charge laid against the accused, beyond reasonable doubt. The accused is found guilty of the charge. The accused is convicted of the charge. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

16th December 2013