State v Singh [2014] FJMC 156; Criminal Case 62.2013 (17 November 2014)

IN THE MAGISTRATE'S COURT OF NASINU
CRIMINAL CASE NO.62/2013

STATE

VS

MALTI SINGH

Ms. Vavadakua for the State (DPP Office)
For The accused: Mis.Kean T. (Legal Aid Commision)

JUDGMENT

[1] The Accused was charged for 1 count of Act with intent to Cause Grievous Bodily Harm contrary to section 255(a) of Crimes Decree no 44 of 2009 and later the DPP With the consent of the bench has amend the charge to ASSAULT OCCASIONING ACTUAL BODILY HARM on 3/04/13. The hearing was done on 8th July 2013. The State call 3 witness and the accused gave sworn evidence for defence. The judgment is for today. I now consider the judgment.

[2] The accused is charged as follows:-

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

MALTI SINGH on the 14th day of January 2013 at Lot 112, Farm Road, Nasinu in the Central Division unlawfully assaulted HARISH LAL thereby causing him actual bodily harm.

[3] To prove this charges prosecution called following witness;

PW1- Mereani Rokotuibua

PW2- Harish Lal

PW3- Jitesh Prasad

PW4- Sharon Shivani Lal

[4] PW1- Mereani Rokotuibua; said as Nurse Practitioner she has examined the victim after the incident and treated him at medical centre. According to her opinion it is confirmed that the wound suffered by the victim has coursed due to stabbing. She marked the medical report which she made for the victim as ex-1 at open court.

[5] At cross examination by the accused counsel, she reaffirmed her position.

[6] PW2- Harish Lal -said he is the husband of the accused. On the 14th day of January 2013 he has gone home after consuming alcohol. He said "i came from my job site. i was fully drunk when i came home and i bring the pork leg and lamb neck. i gave it to my wife to cut the lamb neck and she was cutting. at the same time i told my wife to cut the pork leg and she said she won't do it and i swear to her." After that the accused got wild and picked the knife and strike on his right hand. After the attack the witness said that he got blackout and can't say who else was at the place. At the cross examination the witness confirmed that he was fully drunk at he can't recall and he don't know what happened. When it was further suggested that "i put to you that you attempted to strangle your wife after heated argument?when no one came to help( the accused)while you were strangling her with the gas hose she hit you with meat chopper because she was trying to free herself." and the witness answered "yes may be". Further (pw2) stated that he has forgiven the accused and they have reconciled. He affirmed that they stay together peacefully even without DVRO until hearing date.

[7] PW3- Jitesh Prasad - this is the friend of the victim of this case. He stated that he was called by the victim of this case for help and when he reached the kitchen of the accused he notice that the accused was holding a chopper and said to him "hum maar diya iske" means i killed him. But the witness has not seen the incident when it is happening though he has come to the house of accused. The witness confirmed that the victim of this case used to assault the accused after consuming alcohol.

[8] PW4- Sharon Shivani Lal – this is the eyewitness of this case and she is one of the daughters of the victim and accused gave evidence and said that she was at home on the date of the incident. She stated that her father pull the gas tank hose and tried to wrap it over the neck of the accused and smack her with hose and then the accused hit on the right hand to free her from the attack. The witness confirmed that the victim father of this case used to assault the accused mother after consuming alcohol. She stated after this incident both the mother and father cohabit without further confrontations. At the cross examination the witness confirmed that the accused act was a reaction for the action of the victim and it was not independent or volunteered attack.

[9] Since there were elements of ASSAULT ACTUAL BODILY HARM this court ruled that there is a case to answer for the defence. The accused was grant opportunity to present her case and she gave evidence under oath.

[10] MALTI SINGH-the accused stated that they had an argument and as the accused stated swearing then attacking her and tried to strangle the gas hose which was at the kitchen she had to attack the victim to free her from the victim with whatever she could get. As she was using the chopper and it was close to her she grabbed it and attacked the victims hand to be released from strangling the gas hose over her neck. She said as she did not really meant to do harm the victim she attacked the victim with single strike and as the victim freed her she did not further attacked him. She added that when she notice blood she thought that she have killed the victim. Therefore when the PW-3 came she said to him "hum maar diya iske" means i killed him. She confirms that she have several reports at Nakasi police station as the victim used to assault her and swear when the victim is drunk. She added that since then until now they cohabit peacefully.

[11]The prosecution cross examined the accused. The accused denied all allegations against her. Her explanation on the incident was that she used her right of self-defence against the victim as he tried to strangle a gas hose on her neck. She said that the victim is a right handiest.

[12] In now consider burden of proof and law on this offence. In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, the benefit should be given to the accused.

[13] 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 reasonablet. This mhis means that you must 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 ansonable doubt as to whetherether the 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 counsels 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&#bout the the guilt of the accused."

[14] Therefore, if the court or prudent man thinks the accused is guilty foence in considering all the facts placed before them without any reasonable doubt, then chan charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

[15] Analysis of the evidence
The evidence of the pw-1 proves that the victim has been attacked by a sharp object and injured. The state and the defence have agreed of attacking and injuries on the victim. Therefore the Only issue to be resolve by the bench is whether the explanation given by the accused is acceptable or not? More specifically that the accused has done her act upon self defence or not?

[16] I now evaluate the evidence adduced before me. The court should find actually what had happened. When considering the evidence of pw-1; pw-2; pw-3; pw-4 and evidence of the accused it is well proved that all the evidence are collaborating with each other and is resulting conclusion that the accused has done this assaulting. According to pw-3 the eyewitness of state the victim has tried to strangle a gas hose around the neck of the accused and has attacked the accused. As a reaction to that action of the victim the accused has attacked on the right hand of the victim to release herself with single strike of chopper. She has not continued to attack the victim but has run out of the place where she has met the pw-3. Since she has noticed blood the accused under the impression that the victim has passed way due to the injuries. Therefore she uttered the words "i killed him" even though the victim only suffered injuries. This evidence affirmed by the accused. If the accused had any intention to kill or harm she might not stop with single strike would do more harm. In cross examination the accused was suggested that she took revenge from the victim as she was not happy with what he used to do her and her reply was "i didn't really mean to do that. If i really mean i would have killed him. But i really didn't mean to do that. i just leave the chopper. i don't know the place it hit him". The victim is a right hand person and the accused has attack the same hand of the victim. This gives inference that the victim has strangled accused with his usual hand and the accused attacked on the same to be free. This was confirmed by eyewitness.

[17]This court cannot accept the suggestion of revenge by the state be course of the victims alcoholic behaviour and they both stay until today under same roof and shear the same bed if the accused really had intention to revenge she would go for more convenient and great opportunity such as sleeping time of the victim where the victim is less active or less alerted. The accused might have suffering from the behaviour of the victim and she has reported all the matters to POLICE STATION. But this court finds that all the matters between the two parties have no relevancy to current issue in question.

[18] Therefore as mentioned above this court found that the accuseds assaulting was not an action of deliberate but reaction upon the act of the victim and the accused has used her right of self defence against the victim.

[19] The section 42 of Crimes Decree 44 of 2009 states as follows;

A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence.

(2) A person carries out conduct in self defence if and only if he or she believes the conduct is necessary.

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) To protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(d) to remove from any land or premises a person who is committing criminal trespass – and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) this Section does not apply if the person uses force that involves the intentional infliction of death or grievous harm-

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This Section does not apply if-

(a) the person is responding to lawful conduct and

(b) he or she knew that the conduct was lawful.

(5) For the purposes of sub-section (4) conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

Section 43 of C/D further provides as follows;

"A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law."

[20] The accused is acquitted.

[21] 28 days for appeal.

On 17th November 2014, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate