State v Prasad [2025] FJMC 57; Criminal Case 298 of 2021 (14 March 2025)

IN THE MAGISTRATE’S COURT IN FIJI AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 298/2021

THE STATE –v- SHAILENDRA PRASAD

For the Prosecution: PC Kamea
For the Accused: Ms. Prasad

JUDGMENT

1. The Accused is charged with the following charge: -

Statement of offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act No.44 of 2009

Particulars of offence

SHAILENDRA PRASAD on the 18^th of August 2021 at Sigatoka, in the Western Division punched MUNEN VERMA, thereby occasioning him actual bodily harm.

2. The Accused pleaded not guilty to the above charge and so the matter proceeded to Trial.

The Prosecution Case

3. Prosecution Witness 1 is Munen Verma, 60 years Pastor of Suva. He recalls residing in one of three (3) flats belonging to the Accused at Kulukulu with his family. The Accused resided in one of the other two flats with his family while an Itaukei man named Sailosi lived in the third flat. A common walkway connects all three (3) flats. On 18^th August 2021, he recalls sitting with his wife in the said flat when he heard the Accused arguing with his wife. He went to confront them about it but the Accused told him to mind his own business. The couple then continued their argument with their daughter to their living room while he stood at his door which was about 2 meters away. The Accused’s wife and daughter were arguing in the living room when suddenly the daughter busted the window and came out to the porch screaming and crying. He then asked her (Priya) if she was alright when suddenly the Accused approached him and punched the right side of his cheeks three times. Their neighbor Sailosi then came and separated them. He then reported the matter to the police and was taken for medical whereby he was given a medical form and was seen by the doctor.

In cross-examination, he admits that he did not say anything to the police about the Accused abusing his daughter.

4. Prosecution Witness 2 (PW2) is Sailosi Natiqa of Kulukulu. Currently, he is a tenant of the Accused and was also a tenant on the day in question as he occupied one of the three (3) flats. He remembers the day in question when the incident occurred he was sleeping and was awoke by the sound of fighting. He got up and ran out to see what was happening. He saw the Accused’s kids ran out of their house onto the porch. He was about 2.5 meters away. He then went to ask them what had happened as they (the kids) were shouting. Then he saw the Accused came running outside. He also saw PW1 come out and was standing there with him. He then saw the Accused punch PW1’s right cheek three times and so he quickly stood between them as he saw PW1 pick up a rod. He then took PW1 back to his flat, gave his water and he returned to his flat and lay down.
5. Prosecution tendered in Prosecution Exhibit 1 (PE1)-, the Medical Report of PW1.
6. Prosecution then closed its case. The Court found that there was a Case to Answer and as such the Accused elected to give sworn evidence.

The Defense Case

7. The Accused resides in Kulukulu. On the day in question, he was at home in the sitting room with his children talking loudly about discipline when PW1 ran to them holding an iron rod and told them that they were talking loudly. He then pushed and punched PW1 because he was holding the iron rod. PW1 then punched the top right side of his head (temple). Then PW2 came, stopped PW1 and took him away. He states that PW1 punched him first. He was then taken into police custody. He also informed the police of his injuries although he does not have any medical report.
8. Defense Witness 2 (DW2) is Maureen Prasad of Kulukulu. She is the Accused’s wife. On the day in question, she was at home with the Accused and their children having a family talk loudly when PW1 approached the Accused and punched the right side of his head. PW1 then told the Accused not to quarrel and asked him why was he scolding his daughters. This happened in the porch. She did not see the Accused punch PW1. She also saw PW1 holding an iron rod and saw the Accused’s cousin taking it from him.

In cross-examination, she observed the whole incident and never did she see the Accused punch PW1. She also agrees to the preposition that it was unreasonable for PW1 to just come and punch the Accused like that.

9. Defense closed its case.

Analysis

10. The State bears the burden of proving the elements of the charge beyond reasonable doubt:
    1. The Accused
    2. assaulted PW1
    3. thereby occasioning him actual bodily harm
11. In the course of the Trial, it became apparent that element 1 and 3 were not in dispute as the Accused admits he was present at the time of the altercation. There is also no dispute that PW1 did sustain actual bodily harm due to the swelling of his right cheek as per PE1. Therefore, we will look at what evidence is there to support element 2 and other issues of relevance in this regard.
12. Did the Accused assault PW1? PW1 states that the Accused punched the right side of his face three times. PW2, whom this Court finds as an independent witness, corroborates PW1’s evidence. He was there at the scene and saw the Accused punch PW1 three times on the right side of PW1’s face. The Accused admits as well that he punched PW1 however he punched PW1 out of supposed self-defense because PW1 was holding an iron rod. Therefore, when putting all this evidence it is proven beyond reasonable doubt that the Accused did assault PW1.
13. But did the Accused punch PW1 out of self-defense? According to the Accused, PW1 was holding an iron rod and so this made the Accused push and punch PW1 out of self-defense. In Vasuitoga v State [2016] FJSC 1 (29 January 2016), the scope of self-defense is one where the Court needs to ask itself whether the Accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds. In this matter, the Accused states that PW1 ran to them holding an iron rod and told them why were they talking loudly. He does not explain further in his evidence as to how he felt at this point in time that made him react by punching PW1. The Accused also did not explain as to why he thought it necessary to punch PW1. Due to the absence of these significant evidential features, a defense of self-defense cannot hold in favor of the Accused.
14. There is also a significant inconsistency in the Accused’s version of the events that day is that he says first in the course of is evidence in chief that he punched PW1 but then he changes his version during his evidence in chief that PW1 punched him first. This was definitely an unforced error and more so one that was not clarified by Defense Counsel in the course of his evidence in chief.
13. DW2’s evidence is that she was there the whole time and observed the whole incident. However, when asked whether she saw her husband the Accused punch PW1 she conveniently says no. I find this not plausible to believe as all the other witnesses explain how the Accused punched PW1.
    

Finding

15. In light of the above observations and the testimony of witnesses in its entirety in this matter, I find that the State has proved all the elements of the charge of Assault Causing Actual Bodily Harm against the Accused beyond reasonable doubt.
16. Shailendra Prasad with respect to the charge that has been laid against you, I hereby find you are guilty as charged.

17. We will now proceed to the antecedent report and mitigation.

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J. Daurewa
Resident Magistrate
14^th March 2025