State v Prasad [2017] FJMC 140; Criminal Case 689.2013 (17 November 2017)

IN THE MAGISTRATE’S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 689 of 2013

STATE

v

DHARMENDRA PRASAD

For the Prosecution : PC Monish
For the Accused : Ms Dunn. S

Ruling : 17 November 2017

RULING
NO CASE TO ANSWER

1. The accused, Dharmendra Prasad is charge for Criminal Intimidation, contrary to section 375(1)(a)(iv) of the Crimes Decree 2009.
   
2. The particulars of the offence are;-

“Dharmendra Prasad on the 2^nd day of March 2013, at Labasa in the Northern without lawful excuse, threatened Mahendra Lal with intent to cause alarm to the said Mahendra Lal."

3. The Accused pleaded not guilty to the charge on 5 February 2014. The trial proceeded on 29 February 2016.
   
4. On the trial date, the charge was amended on Prosecution application where the Accused pleaded not guilty to the amended charge.
   
5. At the trial, the Prosecution called two witnesses including the victim. At the closed of the Prosecution case, the Counsel for the Defence seek time to file no case to answer submission. The same was filed on 19 October 2016.
   
6. In the submission, the Defence submit that;-
   1. there is no evidence to show that the accused threatened the victim.
   2. the elements of the offence was not established and proved.
      100. the evidence of the Prosecution is unreliable and no tribunal can convict on it.
           
7. Section 375(1)(a)(iv) of the Crimes Decree 2009, state;-

“(1) A person commits a summary offence if he or she, without lawful excuse-

(a) threatens another person or other persons (whether individually or collectively)

with intent to-

(iv) cause alarm to that person or those person;

8. The elements of the offence that the Prosecution must prove in this case are;-
   • (a) the accused,
   • (b) without lawful excuse,
   • (c) threatened the victim,
   • (d) with intent to cause alarm to the victim,
     
9. The victim, Mahendra Lal stated in his evidence that on 2 March 2013, he had an argument with his sister. The accused is his brother in law. He identified the accused in court. On that day the accused was going to the temple carrying a knife when the accused heard him arguing with his sister. The accused came to them and got angry at him and asking them on why they are fighting. The accused came and his sister pushed him away. He then report to the Police that the accused came to assault him. The accused did not assault him. He thought the accused will assault him.
   
10. The prosecution second witness is Mohini Lata. She cannot recall the 2^nd of March 2013. She remembered Mahendra Lal and his sister had an argument at her place. When she came outside of her house she saw Mahendra Lal and the Accused had a heated argument.
11. There is no evidence from Mahendra Lal that he was threatened by the accused. The Prosecution has closed his case and unable to implicate the accused on the element of threat.
    
12. The test of no case to answer in the Magistrate Court was explained in Abdul Gani Sahib v The State [2005] FJHC 95; HAA 022 of 2005; 28 April 2005, as;-

“In the Magistrate’s Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the Prosecution evidence, taken at its highest, a reasonable tribunal could convict. In considering the prosecution at its highest, a reasonable tribunal could convict. In considering the prosecution case, taken at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a Court can uphold a submission on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case”.

13. The consideration on the weight of the evidence, the credibility of the witness, and the requirement to prove the case beyond reasonable doubt are immaterial at this stage.
    
14. In assessing the evidence, I find that the Prosecution is unable to establish and prove the element of threat required in this case. Accordingly, the Prosecution case will fail and consequently there is not sufficient evidence to require the Accused to put his defence.
    
15. In my ruling, I find that the Defence application has merit and has satisfied the requirement and test required for such application. Accordingly, I find the Accused not guilty as charged and I acquit the Accused accordingly.
    

28 days to appeal

C. M. Tuberi

RESIDENT MAGISTRATE