State v Devi [2013] FJMC 57; Nadi Criminal Case 1247.2008 (31 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

NADI CRIMINAL CASE NO. 1247/2008

BETWEEN :

STATE

AND:

SHANTI DEVI

Sgt Naidu for prosecution
Mr. E Maopa for Accused
Date of Judgment: 31. 01. 2013

JUDGMENT

Introduction

1. The accused has been charged with one count of assault occasioning actual bodily harm and one count of damaging property. She was charged as follows:

FIRST COUNT
Statement of Offence (a)

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to Section 245 of the Penal Code, Cap 17.

Particulars of Offence (b)

SHANTI DEVI on the 2nd day of October, 2008 at Nadi in the Western Division assaulted one Angella Roshni Mani thereby causing her actual bodily harm.

SECOND COUNT
Statement of Offence (a)

DAMAGING PROPERTY: Contrary to section 324 (1) of the Penal Code, Cap 17.

Particulars of Offence (b)

SHANTI DEVI on the 2nd day of October, 2008 at Nadi in the Western Division wilfully and unlawfully damaged a blue lady's top worth $15.00, the property of Angella Roshni Mani.

The Law

3. Section 245 of the Penal Code provides that:

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years"

Section 324 (1) of the Penal Code provides that:

"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years".

4. (i) The Accused has been charged with one count of Assault Occasioning Actual Bodily Harm. The prosecution must prove beyond reasonable doubt the following elements:

(a) The Accused

(b) Assaulted the Complainant, Angella Roshni Mani;

(c) She caused actual bodily harm to the said Angella Roshni Mani.

(ii) She has also been charge with one count of damaging property. The elements of this offence are:

(a) The accused;

(b) Wilfully and unlawfully; and

(c) Caused damage to the blue lady's top.

5. However, identity of the accused was not disputed.

6. The Prosecution has to prove its case beyond reasonable doubt that there was an actual bodily harm as a result of the assault in order to prove the charge of assault.

7. In State v Nagalu [2010] FJHC 152 the Court has stated that:

"The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the Accused's guilt, before you can express an opinion that he is guilty. If you have reasonable doubt about his guilt, then you must express an opinion, that he is not guilty".

The Prosecution Case:

8. The prosecution adduced oral evidence of three witnesses namely Angella Roshni Mani, the complainant (PW1), Parmad Kumar (PW2) and PC Varun They also produced the following exhibits:

(1) Angella Roshni's Medical Report- Exhibit 1

(2) Lady's blue top - Exhibit 2

(3) Caution Interview - Exhibit 3

(4) Statement Form dated 6/7/2008- Exhibit 4

9. PW 1 gave evidence for the prosecution. A summary of the evidence of PW1 is as follows:

(i) On 2 October 2008 she and her husband (PW2) went to Namaka MH Store to buy gift for their son on Teacher's Day. Their car was parked at the car park opposite MH.

(ii) Her husband was sitting in the car when the accused and her husband drove in their car and parked a car away from her car.

(iii) She returned from MH Supermarket and went towards her husband sitting in their car. Her husband told her to go and ask the accused for the money. She went to ask the accused for the money spent for two months on her and her children when they stayed in their house. The accused denied having any money.

(iv) She and the accused quarrelled and swore at each other.

(v) Then the accused held on her top, pushed her, her top was torn and she was holding her chest.

(vi) MH security came and took her to her car. She then went to see a doctor.

10. Under Cross Examination PW1 stated that:

(i) The accused was sitting on the passenger's side and wearing seat belt.

(j) At that time she was just near the vehicle door and she was leaning towards the door.

(k) The accused and she exchanged blows.

(l) The accused came out of the car in-between.

(m) She admitted that she was charged for assaulting the accused and convicted upon her guilty plea.

(n) There were other people around at that time and the security came and stopped the fight.

11. PW2 in evidence stated that that time Dr. Umah Dutt Sharma's car (PW1' husband's car) came. He saw the accused and asked PW1 to ask the money which she (PW1) lent to the accused. When PW1 went towards the car, asked the money then the accused pushed PW1 holding her shoulder. The accused was sitting on the passenger seat. After fighting she came out. One Fijian boy came and stopped the fight and put the lady into the car. He also stated that when PW1 got into the car her frock was damaged and she had few scratches.

12. Under Cross Examination PW2 stated that he was sitting on the driver's seat and he could clearly see the accused. He told they had fight inside and outside the car. He said he can remember the scene but cannot recall what kind of clothe PW1 was wearing at that time. One security from MH came to stop the fight.

14. PW3 tendered record of the caution interview and the charge statement without objection marked as Exhibits 3 and 4 respectively.

Evidence of the Defence

15. When the options were put to the accused, she chose to remain silent, but called one witness namely Etuate (DW1) to give evidence on her behalf.

16. DW1 in evidence stated that he never saw the accused pushing or punching PW1. He came to stop PW1 punching the accused. He opened the car door, release the seatbelt. The accused then got off the vehicle and shaped her hair.

17. During Cross Examination DW1 told that he saw one Indian lady talking to the accused and he didn't see both of them fighting.

The Analysis:

18. The accused is charged with one count of assault occasioning actual bodily harm and one count of damaging property.

19. In order to establish the charge of assault, as stated earlier, the prosecution must prove three elements (paragraph 4 (i) a-c) beyond reasonable doubt.

20. Element 4 (i) a, i.e. identity of the accused was not disputed by the defence hence need not be discussed in this analysis. However, the defence seriously disputes other two elements.

21. PW1 in evidence stated that when she asked the accused for the money they spent on the accused and her two children during their stay at the PW1's house, the accused pushed her holding on her top. In that process her top (P/Ex- 2) got torn and she received injury.

22. In Cross Examination PW1 told that they both (she and the accused) exchanged words and blow each other before the incident. She further stated that the accused came out of the car during scuffle. PW1 admitted that she was also charged for assaulting the accused and was convicted on her guilty plea.

23. Soon after the incident PW1 went to see a doctor with her husband (PW2). The incident took place at around 2.30pm and PW2 was medically examined by the doctor at 2.52pm. Medical Examination Form issued to PW1 (P/Ex-1) confirms that the victim had (1) abrasion/bruise on chest about 10cm long and (2) slight bruise lower lip. In column D (10) of the Medical Report the doctor has recorded history as related by the person to be examined as follows:

"Was assaulted by Shanti Devi, scratched on chest, punched on mouth and nose"

23. Under column D (14) of the Medical Report the doctor has expressed his professional opinion as "consistent with history".

24. PW2 while giving evidence for prosecution stated that when PW1 went towards the car and asked the money, the accused pushed PW1 holding her shoulder. He further told that the accused came out of the car after fighting. PW2 confirmed whatever PW1 told in court.

25. In Cross Examination PW2 stated that PW1 and the accused had fight inside and outside the car.

26. The accused has also been charged with one count of damaging property. The prosecution shall prove three elements to prove this charge as stated above in paragraph 4 (ii).

27. The first element i.e. identity of the accused was not disputed by the defence. Nonetheless, the defence disputed other two elements seriously.

28. PW1 told the accused damaged her top by pulling her. She told the value of the damage was $15, 00. The prosecution exhibited a blue lady's top (P/Ex-2). At trial, PW1 identified the top as the one she was wearing at that time. A tear in the neck of the top was seen. A force should have been used to tear the top.

29. PW2 told when PW1 got into the car, he saw her frock was damaged and she had few scratches.

30. The accused opted to remain silent. However, she called one witness (DW1) to give evidence on her behalf. It appears that the accused has raised the plea of self defence.

31. DW1 stated that that he never saw the accused pushing or punching PW1. He came to stop PW1 punching the accused. He opened the car door and released the seatbelt. The accused then got off the vehicle and shaped her hair.

32. Record of the caution interview and the charge statement of the accused were tendered by the prosecution without objection. The accused did not make any charge statement. During the caution interview the accused stated that:

Q. 12. (In fact there was no question. The answer has been recorded without question). I was sitting in my car and my husband went for shopping in New World Supermarket.

Q. 13. What happened when you were sitting in your car?

A. I was reading papers and suddenly one lady namely Angella Roshni Mani whom I knew before came to my side of the car and swore to me 'kutia' (female dog) 'bajaru' (bitch) come outside I want to talk to you.

Q. 14. What did you do?

A. I saw her and told her I do not want to talk to you and you just go from here.

Q. 15. What happened next?

A. She swore the same words to me and told me you just come out I want to talk to you.

Q. 16. What happened next?

A. I told her I will not come out and I do not want to talk to you.

Q. 17-What happened next?

A. That the same lady pulled my hair and started swearing and slapping me and pulling me out of my car.

Q. 18. What did you do?

A. I was defending myself and trying to remain in my car.

...

Q. 22. What happened next?

A. whilst defending myself one Fijian man came and pulled her by the chest and pushed her away ... from me.

Q. 23. What happened next?

A. I got up, tied my hair, pulled my clothes and sat in the car.

33. Surprisingly, the accused opted to remain silent although she raised the plea of self defence. She did not tell the court why and how she was acting under self defence. Instead, she had relied on DW2 to establish the defence of self defence.

34. The accused during caution interview stated that DW1 pulled PW1 by the chest and pulled her (PW1) away. Whereas DW1 in court stated that he opened the car door and released the seatbelt. The accused then got off the vehicle and shaped her hair.

35. During the caution interview the accused did not mentioned anything about the seatbelt. She stated that she got up, tied her hair, pulled her clothes and sat in the car.

36. PW1 stated that the accused came out of the car in-between. PW2 confirmed this and told the accused was fighting inside and outside the car.

37. Prosecution witnesses were consistent in their evidence. They gave clear evidence in court. They answered cross examination question promptly and without any hesitation. Their evidence was not shaken in cross examination.

37. DW1 contradicted with the accused's statement in caution interview. He was consistent in saying that he did not see the accused pushing or punching PW1. He gave manifestly unreliable evidence. The accused failed to give evidence with regard to the plea of self defence. I therefore reject the plea of self defence raised by the accused

38. The accused caused injury to PW1 by pushing. In that process the accused damaged PW1's top by pulling. She has done this damage wilfully and unlawfully, because, the accused had no right to hold PW1 by the shoulder.

39. I am satisfied that the prosecution has proven each element of both the charges beyond reasonable doubt. I therefore find the accused guilty to both the charges as charged namely assault occasioning actual bodily harm, contrary to section 245 of the Penal Code and damaging property, contrary to section 324 (1) of the Penal Code. I convict the accused accordingly.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 31st day of January 2013.