Regina v Sewak [1977] FJSC 128; Criminal Appeal 69 of 1977 (14 July 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 69 of 1977

BETWEEN

REGINA
Appellant

AND

1. RAM SEWAK s/o Mangat
2. SHIU LAL s/o Nanhu
Respondents

Mr. M. Iqbal Khan, Counsel for the Appellant
Mr. M.T. Khan, Counsel for the Respondents.

JUDGMENT

The Director of Public Prosecutions appeals against a sentence of a fine of $50 imposed on each accused after they were convicted of indecent assault. The two respondents were originally charge on two counts namely that they attempted to do grievous harm to Vishwa Prakash and that they attempted to have carnal knowledge of his wife Tara Mati without her consent. The magistrate held that neither charge was proved, but that the evidence made out a charge of indecent assault against the woman. Both accused elected not to give evidence in answer to that charge, but they called the father of the first accused to give evidence.

The learned magistrate said that it was a very trivial case of indecent assault. I am not quite certain what he means by that, for I would have doubted if there can be a trivial of indecent assault. Here he held that the woman had been pushed onto the ground and her blouse pulled and the buttons loosened. I think that I have to consider an application to review the magistrate's sentence against the background of the magistrate's finding that the complainants' stories were widely exaggerated. I think it is relevant, too, to remember that this incident appears to have taken place on Christmas night, and no complaint was made to the police until 27th December.

Mr. M.T. Khan suggested that the two complainants said nothing about the matter during the whole day of 26th December. I do not think that is correct. They certainly woke up Sheikh Mohammed about 2.00 am. On 26th and were sufficiently upset to tell him that the accused wanted to kill them and force them. But they did not ask to be taken to the police station.

When I look at the evidence that was accepted by the learned magistrate I find that the two accused took this woman and her husband off the main road, separated the two of them and left the woman with the first accused while the second accused took the husband away. The accused had previously threatened violence to both complainants. Both accused were under the influence of liquor, and both sought to explain away their actions by the excuse of drunkenness. It has been said in this court time and time again that drunkenness does not excuse criminal offences. Both accused have previous convictions, and Ram Sewak has served three previous sentences of imprisonment. I confess to some surprise that the woman should have been with the accused Ram Sewak for four and a half hours - from 8 pm to 12.30 a.m., she says he was calling her and sending her away. I am not quite certain what that means. I think that I must regard this case as being on the borderline so far as a custodial sentence is concerned, and that being the case, the respondents must get the benefit of the doubt.

I am not prepared to set aside the imposition of a fine. However, in these days I regard a fine of $50 for an offence which would normally attract imprisonment as quite unrealistic. I set aside the sentence imposed by the magistrate and in its place I impose a fine of $160 upon each respondent, in default six months imprisonment in each case.

(Sgd.) K.A. Stuart
JUDGE

LAUTOKA,
14th July, 1977