IN THE MAGISTRATES COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: 182 of 2014

STATE

VS

RAJESHWAR PRAHALAD

Prosecution : MrJosaia B. Niudamu
Accused : Present (Mr Anthony)

JUDGMENT

1. The Accused has been charged with the following offences under the Crimes Decree 2009.

FIRST COUNT
"Statement of Offence"
INDECENTLY INSULTING OR ANNOYING ANY PERSON: Contrary to Section 213 (1) of the Crimes Decree No. 44 of 2009.

"Particulars of Offence"
Rajeshwar Prahalad on the 26th day of March, 2014 at Lautoka in the Western Division, with intent to annoy the modesty of Rohan Rohitesh Prahalad uttered insulting words such as "Maichod" meaning "mother fucker" intending that such words shall be heard by the said Rohan Rohitesh Prahalad.

SECOND COUNT
"Statement of Offence"
ASSAULT CAUSING ACTUAL BODY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

"Particulars of Offence"
Rajeshwar Prahalad on the 26th day of March, 2014 at Lautoka in the Western Division, assaulted Rohan Rohitesh Prahalad thereby occasioning him actual bodily harm.

THIRD COUNT
"Statement of Offence"
BREACH OF DOMESTIC VIOLENCE RESTRAINING ORDER: Contrary to Section 77 (1) (A) of the Domestic Violence Decree of 2009.

"Particulars of Offence"
Rajeshwar Prahalad on the 26th day of March, 2014 at Lautoka in the Western Division, breached the Domestic Violence Order Number 55 of 2014 of Lautoka Magistrates Court dated 10th February, 2014 by physically assaulting and also verbally abusing Rohan Rohitesh Prahalad a protected person.

1.	THE LAW
 Section213 (1) of the Crimes Decree No. 44 of 2009 reads as follows;

213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person — 

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or 
Penalty — Imprisonment for one year.

 Section 275 of the Crimes Decree No. 44 of 2009 reads as follows;

275. A person commits a summary offence if he or she commits an assault occasioning actual bodilyharm. 
Penalty — Imprisonment for 5 years.

 Section 77 (1) (A) of the Domestic Violence Decree of 2009;

77.-(1) Any person who, having notice of a domestic violence restraining order by which they were bound, without reasonable excuse contravenes the order or part of the order, is guilty of a criminal offence and is liable on conviction -

(a) subject to paragraph (b), to a fine of $1,000 and a term of imprisonment of 12 months.

2.	Elements of offences

 Accordingly the elements specifically the prosecution has to prove beyond reasonable doubt against the accused in all three charges are;

First count
1.	On 26.3.2014
2.	The accused uttered insulting words such as 'mother fucker'
3.	Intending that word to be heard by the complainant 
4.	With the intention of annoying the modesty of the complainant.

Second count 
1.	On 26.3.2014
2.	The accused assaulted the complainant 
3.	And thereby occasioned actual bodily harm to the complainant.

Third count
1.	The accused on 26.3.2014
2.	Breached the domestic violence restraining order issued against him on 10.2.2014 in the case of 55/2014 
3.	By physically assaulting and verbally abusing the complainant.

4.	Burden of prof 
 According to section 57(1) of the Crimes Decree the onus is in the prosecution to prove the elements of charges/charges. Section 58 (1) states that burden of proving aforesaid elements are beyond reasonable doubt.

 In Miller V Minister of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' states that;

'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 the shadow of the 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.

 Therefore it should be noted that proving beyond reasonable doubt is somewhat proving not beyond all doubts but proving all elements of charges according to a reasonable prudent man's test that the facts in issue before the court have been proved with no reasonable doubt. 

5.	Evidence led before court.
 The prosecution led the following witnesses before court whilst marking following documents in court.
PW1 RohanPrahld -complainant PW1
PW2 PriyaShivaniLata -sister of PW1
PW3 ShusilLata -mother of PW1
PW5 CPL Meena- investigating officer.
PW4 Medical Officer.
PW6 Cpl Ram Prasad- interviewing officer
PEX1 Interim Domestic Restraining Order
PEX2 Caution Interview of the accused
PEX3 Medical Legal Report of PW1
PEX4 Charge Statement of the accused.
 The accused led the following witness in court for his defense by marking following documents. 
 DW1 The accused
DW2 Sat Singh- eye witness
DW3 Raj Kumari- Mother of the accused
DW4 Ram Prasad-father of the accused
RP1 Medical Report of the accused
RP2 DVRO Case 
RP3 Statement of Mr. Sat Singh

6.	Crux of the prosecution case

6.1	 PW1 is the son of the accused. According to his evidence on the date of the incident that was on 26.03.2014 when he was at homewhile studying the accused had come with his parents those were DW3 and DW4. Then the accused and his father had started moving the tablewhich the witness was studying in order to put a bed to that place for DW3 and DW4 to sleep.

6.2	When the witness showed his dis likeness of moving the table as he did not have a place to study then the accused told him otherwise he would drag witness form that place.As the witness was scared by hearing that words he stated that he moved away allowing the accused to shift the table. 

6.3	Then the bed was moved insideand the witness said then he saw DW3 and DW4 were going to their home to bring blankets. Sametime when the witnessquestioned the accused then where he will study after the table was moved outside the house. The accused hadstarted swearing the witness utteringmaichoid meaning mother fucker, and bastard. Apart from that the witness said accused told him had stated he does not care whether the witness study or doesn't study.

6.4	Same time with that anger the accused had started assaulting the witness and according to witness first punch was landed on his lips which resulted a cut on his lips and the second punch was on the right hand as the witness managed block that punch.

6.5	With that two shots the witness had been black out for a while and when he regained conscious he said he was told by his mother PW3 that the accused went outside with the witness's mobile phone. Then he said he went outside to take his mobile phone and after struggled with the accused he said he was able to take the mobile and then he went inside home.Then the matter was reported to the police and his medical report was tendered as PEX 3 by the medical officer during her evidence.

6.6	According to him thesaid bed in question had been at the porch even they came home after school and did not know what exactly accused would do with that. 

6.7	Then the witness was subjected to lengthy cross examination by the accused. Crux of his line of his defense was that the witness was having a separate table to study in his room there was no issue of moving the table from the living room. But the witness explaining that table is small and that has been utilized to keep the computer he denied that suggestion. The witness denying that he lied to court stated that although he was scared at the beginning he was not scared to go after the accused on the second time when he learnt this the accused took his mobile phone which made the witness annoyed by that time. 

6.8	Furthermore he denied that he was not happy about DW3 and DW4 were moving to their house and further denied that his feelings were not triggered by seeing they were coming. Apart from that the witness denied swearing the accused punching the accused to take the mobile from him and his grandfather was telling witness not to assault the accused.

Q:You hit on the right, punched on his head and back towards the shoulder?
A:No.
Q:You struck him 3-2 times on back of his head and eye, neck and shoulder?
A:No.

6.9	After the aforesaid evidence then prosecution called the evidence of his sister. According to PW2 on the day of the incident around 5.30pm. The accused had arrived with his parents and started shifting thing from living room to outside in order to put a bed which was at the porch when she came with home with the aforesaid witness and their mother. 

6.10	This witness was at the sofa and when the accused told her and her brother PW1 to moved away both had moved away. Her brother had been studying on the dining table at that time. After the bed was moved inside the witnesses said she heard PW3 asking the accused why he did not move that bed inside to a spare room. The accused denying that and then had said as the house was his he will put the bed wherever he wants. Then when PW1 had asked the accused where he will study and the witness said then accused had told him you study or you don't study as he did not care. The witness said then the accused started swearing and assaulted PW1. The witness said the accused swore PW1 saying maichod (mother fucker) and bastard. Then she said she saw accused punching on PW1. The first punch was covered and the second punch was landed head causing injury on his right lip.

6.11	At the cross examination this witness admitted that the accused did not have a healthy relationship with the family due to an extramarital relationship. The accused had stopped staying with them from 2.9.2011 till 9.2.2014. The witness explaining the sequence of events stated that when the bed was being moved the accused told PW1 and the witness to move and assault incident was after bed was brought. According to the witness both her grandparents had gone at the time of the second incident. This witness claimed that she was 10 feet away from the assault incident. Explaining how the assault happened she PW1 was able to cover the 1st punch and second punch was on his lips. The witness denied that her mother telling PW1 to assault the accused.

Q: Your mother told PW1 to assault the accused
A: No.

6.12	 The witness stated that PW1 did not have his mobile phone with him at that time and admitted that PW1 went after the accused to take the phone. The witness admitted that there were people present around when his brother went to take the phone from the accused. The witness denied knowing any Sat Singh.

6.13	Then prosecution called next eye witness SushilLata the mother of PW1 and PW2. According that witness there was Domestic Violence Restraining order was operating against the accused since February 2014. The Reference number of that order was 55/2014. This was tendered as PEX 2. Court observed the contents of the order and the accused is the respondent of the order and applicants were PW1 – PW2.

6.14	The witness claimed after the accused came home with parents he started shifting thing to outside in order to put a bed to the living room. When she told accused why not the bed was put to a spare room the witness said the accused replied that he will do whatever he wants as that was his house. 

6.15	Same time when PW1 also had asked where he would study the witness said then accused told her son to study outside or does not study. And then the bed was moved. She said his parents left to bring blankets. Accordingly when her son asked again from the accused where he will study the witness said then accused started swearing her son and assaulted him. She said the accused swore her son telling mother fucker and bastard. Since son was felt unconscious the accused had moved out taking the mobile phone of her son. And when he regained conscious within few minutes he said her son that his mobile was taken out. Then witness said her son went out and took the mobile from the accused. And then she called police and took her son to the hospital.

6.16	At the cross examination the witness admitted that after 8th March the parents of accused came to sleep at nights and before that they just visited witnesses. She denied having a tension at home after DVRO was obtained as the accused did not come home. The witness admitted breaking up and argument but denied that she swore at her husband and telling her son to assault the accused.

Q: Put at that point you swore at your husband?
A: No.

Q:At that point you asked your son to assault the accused?
A: No.

6.17	The witness denied that her son assaulted the accused and she further denied that her in laws were at home by the time of the incident. The witness denied that there was a conviction against her son for assaulting his father on the same incident. 

Q: Yet you don't know your son was charge and convicted?
A: No.

6.18	And she further denied speaking to police and any witness about any case of her son. According to the witness in regards to the assault the first punch was on the lips and the second punch was on his arms. The witness denied saying mother fucker to the accused.

Q: You said mother fucker to the accused?
A: No.

Q: You exactly wanted your son to go and hit the mother fucker?
A: No.

6.19	 With that evidence lay witnesses' evidence was concluded. Other than them prosecution then called official witnesses such as investigating officer, medical officer and the interviewing officer.

6.20	The Medical officer tendered the medical certificate of PW1 as PEX3. According to her evidence on 26.03.2014 she has examined the PW1. She has observed fresh one laceration on the upper lip on the mucosa of the right hand side and swelling on inner arm of the right hand. The witness further stated that she observed PW1's left arm was totally weak. Finally she stated that she found that the injury pattern is consistent with the given history.

6.21	At the cross examination the witness admitted observing a completely weaken arm of the patient and admitted examine him at 11.00pm. She further admitted taking history from the mother of the patient and her assessment based on the given history. And finally she categorized two injuries as non-grievous. 

6.22	After the doctor then the evidence of CPL Meena who is the investigating officer was led. In her evidence she admitted conducting the caution interview of the accused. That interview was tendered as PX2. According to the witness the said interview had been done following all procedures.

6.23	Then she was cross examined to the depth. The witness admitted having knowledge of cross complaint against the PW1 of this case originated from the same incident. The witness denied visiting the crime scene and admitted that by not visiting the crime scene she was not able to record all statements of the witnesses who were present. According to the witness she admitted having a cross interim DVRO issued against the SushilaLata PW3 protecting the accused and his parents. The witness denied that she did an incomplete investigation and that her investigation was biased. 

6.24	Then the evidence of CPL Ram Prasad was led and he admitted charging the accused on 3.4.2014. charge was conducted given all rights to the accused according to him and that charge statement was tendered as PX4

6.25	The witness was not cross examined by the accused.

6.26	With that evidence prosecution closed their case. By a ruling of this court on no case to answer the accused was called to tender his defense. The accused elected give evidence and called three other witnesses for his case.

7.	The defense case

7.1	The accused commenced his defense by giving evidence. Crux of his evidence was that on 26.03.2014 the accused had come home with his parents to move a new bed inside the house which had been bought and was at the porch. He had moved the bed into the living room by shifting a table and sofa outside. Before he shifted the table and sofa he had said PW1 and PW2 to move from table and sofa. After the bed was shifted in the accused had gone out with a bottle of water and then he had started talking with one Sat Sigh who was also to be seen within the compound. When the accused was seated beside Sat Singh he said he heard inside the house PW1 was screaming from top of his voice stating that he will assault the accused. Then he saw the PW1 was running inside the house and her mother was holding the hand of the accused.

Q: Where did he run towards?
A: When he ran out of the house my wife was standing on the door steps she god hold of his hand.

Q: What happened next?
A: He forced his way to myself and he told me I am going to assault you.

7.2	Then accused said he told PW1 that he will not assault him.

Q: What else did you say?
A: Your worship I told him that 20 years of my marriage life I have never assaulted you, your mother and your sister and today again I am never ever going to touch you.

7.3	Despite what he told PW1 the accused said then PW1 started throwing punches at him. According to the accused PW1 had wanted punched on his face but he said he was able to block those punches by covering head downwards. According to the accused he had punched on his head fore head and the shoulder. After punched PW1 left place and the accused said then he called the police from his mobile. The police had arrived at 8.00pm and around 9.40 pm the accused was examined by a doctor at the hospital. That report was tendered as RP1. After the medical the accused said he followed up his complaint and he was informed that PW1 will be charged for assaulting the accused. The said information was received to the accused on 18th November. According to the accused the reason for PW1 to assault him as other family members did not like his parents coming to their home. Tendering a ruling as RP2 by this court the accused said that he took his parents as he was permitted by the court to do so. The accused stated that her daughter was also not in good terms with him for not approving her relationship with her boyfriend. 

7.4	At the cross examination the accused denied that his parents lived at his brother's place during day time in Saweni. Further he denied that on the day in questioned he forcefully told PW1 to move away from the table. The accused denied punching and swearing PW1.

Q: And I further put to you that why have refused to move away from the table and you involved in a fight you punched your son?
A: No I did not punch my son at all your worship.

Q: You punched him on the hands and also on the face?
A: I did not punch my son your worship.

7.5	The accused denied taking PW1's mobile phone and provoking his son. Answering to the question the accused stated that although he mentioned about availability of one witness namely Ronald the accused said that police told him that the said Ronal denied becoming a witness to his case. The accused denied causing trouble to the prosecution witnesses at the hospital and denied the suggestion by the prosecution that PW1 one just try to take mobile without doing anything to the accused. But this court disregarded that portion of evidence as there was no police officer from the accused to depose to that effect.

7.6	After the accused the DW2 Mr Sat Singh was called to give evidence. On the date of the incident according to the witness when he was waiting near the boundaries of the accused compound he said he saw that the accused was coming out towards him with a bottle of water. The accused had come after setting some chair and then the accused had sat beside witness. Same time he said he saw PW1 swearing the accused stating that he will hit the accused. Then PW1 had started punching back for head and upper back of the accused. When the accused covered the punches witness said that then his wife came there and threatened the accused that she will complained the accused to his work place.

Q: What happened after that?
A: After that Rajesh's wife came out and she got hold of his son and said you are not supposed to do this.

Q: What happened after this?
A: After that his wife told Mr Rajesh I am going to complain to your workplace that you hit me and then you will get out of your work.

7.7	Then witness alleged that PW3 threatened him not to be a witness by coming to his home and giving him numerous calls on his mobile. The witness claimed that other than him there was another witness by the name of Boya and accused parents were present. 

Q: Mr Singh taking you back to the incidentare there any other witnesses who witnessed this incident?
A: Yes his parents were there and a boy named Boya.

7.8	With that evidence the defense moved to mark his statement to show consistence and that statement was marked as RP3. 

7.9	At the cross examination the witness denied witnessing anything happened inside the house. 

7.10	Then the accused called his mother as a witness as DW3. According to the witness the accused after bringing a new bed he had replaced that inside the house on the same day evening with the help of his father. The witness said the bed was moved after shifting a table and after that she saw that the accused was going out with a bottle of water. By that time she and her husband were at the porch. The accused was seen talking his friend and then came under a tree.

Q: After they drank together who came underneath the tree?
A: Only my son.

7.11	 Then she said she witnessed PW1 came out the house and hit the accused whilst PW3 was telling PW1 to hit his father. The accused was assaulted on the back fore head. Then she said PW1 went inside the house and locked the house and after while they all went in a car to somewhere. 

7.12	At the cross examination the witness denied not being there and she stated that she did not want to go as her bed sheets were at that houseto a suggestion that the witness went to bring bed sheets. The witness denied seeing that her son hit PW1 and stated that she heard PW3 was telling PW1 to go and hit his father.

7.13	 After that evidence the evidence of DW4 the father of the accused was led. According to his evidence the witness had used to stay at the accused place. On the day in question the witness said that there were talking going on and thereby he and DW3 went to the porch.

Q: What happened afterwards?
A: After Rohan went inside the house MrRajeshwar's wife came out cleaned the car and after some time with her son and daughter in their car they went somewhere.

7.14	 Then he said he saw PW1 was coming out of the house angrily and said that he is going to hit the accused. By that time the witness said that he saw the accused was sitting at the compound with another security guard. When PW1 said that he wanted to the accused the witness said then saw PW3 was holding him but having come from PW3 then PW1 has said the accused mother fucker and started punching on the back head of the accused. After assault the witness said then the accused told said that he will not hit PW1 as from his birth he had not assaulted him.

Q: What happened after when your grandson punched Rajesh. What did Rajesh do?
A: Rajesh said since birth time till now I have never assaulted you and I have not hit you ever.

7.15	 At the cross examination the witness stated that since PW1 did not like that he and his wife came into their house he was annoyed and he was annoyed not that the table was moved. The witness said that after the table moved he saw that PW1 was sitting on settee. The witness denied that the accused swore and assaulted PW1. And finally according to him the only people who were available to witness the incident was DW2 and a security officer. 

7.16	With that evidence the accused also closed his case.

8.	Analysis.
8.1 With the aforesaid evidence now the question before this court is to evaluate whether prosecution was able to prove their case beyond reasonable doubt against the accused as oppose to that whether the accused was able to create reasonable doubt in the case for the prosecution.

8.2 According to the prosecution the motive for the accused to commit 1-3 offences was his annoyance and the unhealthy relationship he has had with his family members at the time of the incident. This position is substantiated with the evidence of three eyewitnesses as they confirmed not having a good relationship with the accused because of his extra marital affair and that he was angry about PW1's questioning him about the place he would study after the table is moved.

8.3 But the accused's contention is the reason for the PW1 to assault him was that his wife and daughter including the PW1 did not like that his mother and father were brought in to their place and that motivated PW1 to assault the accused and secondly her daughter was not in good terms with the accused as he interfered to her relationship with her boyfriend. 
 
 According to the evidence of PW3 the parents of accused had not just came to stay on the date of the incident and they had been staying there from 8th of March. Before that according to that witness parents have used to stay nights only. 

On the other hand it was observed by this court in regards to the second reason adduced by the accused that the PW2 to not to be in good terms with the accused for interfering to her love affair also has to be evaluate carefully because it appears from the evidence of the accused that this position had never been put to the witness and when she was under cross examination and thus this court has to disregard that evidence as inadmissible on the basis of hearsay evidence.

8.4 Therefore it is incumbent that the court has to evaluate the aforesaid opposite evidence by both sides with utmost care to see what party is telling truth to court whilst paying attention whether the prosecution was prove all elements of the charges against the accused. 
 
 According to the evidence of prosecution this court observed that three eye witnesses are consistent about the incident on which accused assaulted PW1. According to their evidence after the bed was moved to the living room when PW1 question about the place where he will study the accused had started swearing and assaulting the PW1. All three witnesses confirmed the accused uttering PW1 maichord meaning mother fucker PW1 and assaulted him on his face and the right arm. 
 
 According to three witnesses after the first incident there had been second incident and that was PW1 went after the accused to take his mobile phone after regained conscious from the assaults by the accused.
 
 Therefore as per the prosecution there were two incidents and one is inside the house and second one is outside the house.

8.5 As oppose to that according to the accused there had not been any incident on that day up until he came out of the house with a bottle of water. According to him when he was sitting at the compound the PW1 had rushed towards him telling that he wanted to assault the accused.

8.6 When evaluating that very moment with the other three defense witnesses of the accused it is evident before this court that the accused story is utterly inconsistent to the story alleged to have been seen by DW2 to DW3.

8.7 According to the accused when he saw that the son was coming to him screaming top of his voice he had seen that (PW3) his wife was getting hold PW1 to stop coming him to the accused. According DW3 this was totally different to the version of the accused and according to her version PW3 had wanted her son to go and assault the accused and that witness in her evidence in chief and in cross examination both stated that she heard that PW3 was telling her son go and hit the father. 

8.8 This was totally contrary to the observation by Mr. Sat Singh who claimed to be another eye witness to the accused. According that witness after PW1 assaulted the accused PW3 had come out of the house and threatened the accused by reporting him to the police. This situation was never spoken by the accused in his evidence in chief and his only contention was PW3 attempted preventing her son attacking the accused.

8.9 But when looking at the cross examination of the accused against PW3 the accused's cross examination was totally contrary to what he said in his evidence in chief. At the cross examination the accused suggested his wife that she also swore at the accused when son came to assault and the exact suggestion was that she swore the accused telling mother fucker and then she told her son go and hit the mother fucker. The same suggestion was seen put to PW2 who also was present and thereby it is incumbent that the accused is changing his defense by taking different positions.

8.10 Secondly the accused claimed that when the PW1 came to assaulted the accused he told his son that "for the 20 years of marriage life he had never assaulted PW1 his sister and his mother and today also that he will not hit his son". But DW2 claimed to be with the accused closed by him right throughout incident did not mentioned about accused uttering such words to PW1. According to Sat Singh soon after PW1 threatened the accused he has started throwing punches at the accused. According DW4 after the punches the exact words that the accused uttered were 'since birth time till now I have never assaulted you and I have not hit you ever'. According to DW4 this words were after the assault whereas according to the accused this words were before the assault. However it was observed by this court this position never suggested to the PW1 and it appears this portion of evidence was well after thought by the accused. Apart from that DW4 stated in his evidence he heard PW1 swearing the accused motherfucker but neither accused nor Sat Sing claimed they heard such word uttered by PW1. The aforesaid discrepancies in the defense evidence were not explained by accused.

8.11 Thirdly the contention of the accused about the presence of witnesses by the time he was assaulted were DW2 to DW4 and another witness called Ronald. He stated in his evidence he was told by the police the said Ronald informed police that he did not want to become a witness to the incident. Contrary that DW2 claims a presence of one "Boya" however there are no evidence before this court as to the said Ronald and Boya are two different persons ora one person. This creates a doubt in the courts mind in regards to the reliability of witnesses as to who speak truth.

8.12 Fourthly the evidence by DW2 was the wife of the accused threatened him not to become a witness to this case. He said the accused wife visited him at his home and gave numerous calls to that effect. But when that PW2 the wife was under cross examination it is observed by this court the witness was never suggested specifically stating that she threatened DW2 by visiting and giving numerous calls. Therefore this portion of evidence is also has formed after thinking by the accused. In regards to the cross compliant against PW1,PW3 was vehemently questioned by the accused in his cross examination that PW1 was charged and convicted for assault causing bodily harm to the accused which the witness denied for not having such a conviction. But when it came to the evidence of the accused this court observed that he had changed his bias and stated to court that he was aware that there was docket being prepared to charge the accused. Therefore it is evident that the accused was taking different views on his defense and changing his evidence as he liked. 

8.13 In regards to the suggestion by the accused for assaulting him by PW1, his exact questions were

Q:You hit on the right, punched on his head and back towards the shoulder? 
A:No.

Q:You struck him 3-2 times on back of his head and eye, neck and shoulder? 
A:No.

8.14 But when he gave evidence the exact place that PW1 supposed to have assaulted him were head forehead and on his shoulders.

 Q: Where exactly did he punch you?
 A: He wanted to punch on my face but I tried to shade my face.

 Q: How?
 A: I used my hand. I did like this and I got up towards the ground.

With that findings it is evident at the beginning the accused took a position of receiving assault on his eye and the neck. But when giving evidence in chief the exact position of receiving punches according to the accused is contrary to the places he questioned from PW1. Therefore it appears that the accused also was not sure about the places exactly he received punches.

8.15 With the aforesaid findings it is evident before this court that evidence by the defense witnesses is contradictory to inter se and per se.evidence by the dense witnesses is not consistent. As regards to the reason for assault by PW1 to the accused is highly improbable. Because according to the accused after the bed was shifted and after he came out to the compound and when he was talking with DW2 only PW1 had come out screaming to assault the accused. 

8.16 This was totally different to what the mother of the accused deposed in court. According to her version assault had taken place after the accused came out, drank water with DW2 and when he came under a tree alone only PW1 had started assaulting the accused. Contrary to that DW4 version is that there had been talking inside the house which was resulted DW4 to come out with the DW2 to the porch. Then PW1 went swearing to the accused mother fucker and then assaulted the accused. Therefore it seemed thatdefense witnesses are per sein consistent.

8.17 In the case of In the case of State v Kamal reported in 2014 FJHC 8HAC 221.2011 dated 24.01.2014.It was decided that credibility of witness should be evaluated under following grounds

1.	Test of means of opportunity.
2.	Probability and improbability.
3.	Belatedness.
4.	Spontaneity.
5.	Consistency.

8.18 Therefore with the aforesaid tests it incumbent that the evidence by the defense is less worthy of credit improbable and inconsistent as opposed to the evidence of the prosecution. The Prosecution evidence in regards to that very moment according toPW1, PW2 and PW3 the accused had to assault and swore at PW1 was due to his annoyance of questioning the accused where PW1 will study. This is corroborated not by prosecution two witnesses but by the father of the accused (DW4) too. According to his evidence as mentioned above he admitted in Court having a talk inside house after the table was shifted which resulted him to go outside with his wife. But according to accused and DW2 there is no such indication of any talks till the accused went to the compound with the water bottle. Therefore it is incumbent as claimed by the prosecution there were exchange of words inside the house. 

8.19 All three prosecution witnesses confirmed the accused uttering the PW1 maichord and bastard out of anger. There is no inconsistency in regards to uttering those words by the accused by any of prosecution witnesses. In regards to the alleged assault PW1 and PW3's version is the accused first assaulted the upper lip and then assaulted the right arm of PW1. PW3 in her evidence although she mentioned that PW1 was able to cover the first punch and the second punched landed on the lips court see no material discrepancy in that evidence as the witness clearly mentioned the exact places the punches are landed on PW1. According the Medical report the pattern of injury consisted with the evidence of three witnesses. The Medical officer also is of the opinion that the injuries are consistent with the given history. Although the prosecution attempted creating a doubt that her findings based on the given history the witness properly explained with her experience and the knowledge how she came to a conclusion that the injury pattern consisted with the history.

8.20 The prosecution did not deny PW1 was having a struggle with the accused. The evidence of PW1 after he regained conscious and when he came to know from his mother that the accused took his mobile with him he said he was angry and that incited him to go and get the mobile from the accused. He said he had to have a struggle with the accused. As per the prosecution that resulted the accused to sustained injuries. As opposed to that if the accused claimed that his injuries were due to assault it is the duty of the accused to rebut evidence of the prosecution. It should be noted by this court the only evidence available in regards to the injuries of the accused is nature of injuries and there is no opinion before this court how that injury occurred to accused. This court was deprived by having opinion of the doctor the possibilities of receiving such injuries to the accused.

8.21 Therefore if the accused intended to bring evidence in rebuttal about the manner in which he received injuries the prosecution is impaired to prove that fact before this court because it is the accused who denied the evidence suggested by the prosecution. Thereby with complying to the aforesaid rules set out in the judgment to arrive at a conclusion in regards to trustworthiness of the witness it is evident before this court the evidence by the defense witnesses are improbable, inconsistent and uncorroborated. 

8.22 In regards to the evidence of investigating officer I disregard to disbelieve her evidence on the fact it is suggested that her investigation was biased and it is in completed, because her non visitation did not tantamount to create a reasonable in the case for the prosecution. There is no evidence that the witness deliberately done a biased investigation. Mere admission of her not visiting her to the crime scene showed to court that she did not intentionally attempted the accused to be incriminated to the crime. Especially the accused undisputedly admitted the interview conducted by the witness on him is legal. Those show itself the witness was not biased and had conducted investigation as per her instructions. 

8.23 According to his Lordship justice Gounder in the case of State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010) it is held that 

'Corroboration means some independent testimony which affects the accused by connecting him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also the accused committed it'.

8.24. With the aforesaid analysis it is evident before this court that the evidence by the prosecution is corroborated, worthy of credit, cogent and reliable. Contrary to that I found the evidence of the defense inconsistent uncorroborated and unreliable.

8.25 Therefore in regards to the elements of all three counts that this court is satisfied beyond reasonable doubt the prosecution was able to prove that the accused on 26.3.2014 uttered insulting words such as 'mother fucker' to his son who is PW1, intending that word to be heard by the PW1 with the intention of annoying the modesty of the PW1. 

Secondly on the same date during same transaction the accused assaulted PW1 and thereby occasioned actual bodily harm to the PW1.

Finally the accused Breached the domestic violence restraining order issued against him on 10.2.2014 in the case of 55/2014 by physically assaulting and verbally abusing the PW1.The accused did not dispute having a DVRO against him under the aforesaid case preventing him PW1 to be verbally harassed and physically assaulted. Therefore subjected to Prof of aforesaid two acts by the accused in the first and second count it is evident that the prosecution was able to prove the elements of third count.

8.29 With that I found the accused guilty to first to third counts and I convicted the accused as charged contrary to sectionContrary to Section 213 (1) of the Crimes Decree No. 44 of 2009, Contrary to Section 275 of the Crimes Decree No. 44 of 2009 and Contrary to Section 77 (1) (A) of the Domestic Violence Decree of 2009.

28 days to appeal.

Lakmini Girihagama
Resident Magistrate, Lautoka

20th January, 2015.