Shankar v R [1977] FJSC 62; Criminal Appeal 025 of 1977 (1 April 1977)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO: 25 OF 1977
BETWEEN:

SHIU SHANKAR
s/o BALWANT

&

REGINAM
JUDGMENT

This is an appeal against the conviction of the appellant on the 3^rd March 1977 by Suva Magistrates Court of an act intended to cause grievous harm contrary to subsection (b) of section 255 of the Penal Code.

The appellant was originally charged under subsection (a) of section 255 of the Penal Code, the essential ingredients for the purposes of this case being that the appellant unlawfully did grievous harm to a person, with intent to do grievous harm. However, after all the prosecution witnesses had given evidence, it was perfectly clear that the appellant had not done grievous harm, or indeed any harm whatsoever, and that the charge was misconceived; whereupon the prosecution applied and were allowed to amend the charge to an offence contrary to sub section (b), the essential ingredients for the purposes of this case being that the appellant unlawfully attempted to strike a person with a knife, with intent to do grievous harm.

As a charge under subsection (b) only requires an unlawful attempt to strike a person with a knife with the necessary intent, as distinct from the actual infliction of injury with the necessary intent as required under subsection (a), it follows that if a charge under subsection (b) is substituted for a charge under subsections (a) not only the statement of offence but also the particulars of offence must be amended accordingly. This was done in this case.

The particulars of offence throughout were that: –

"SHI SHANKAR s/o BALWANT, on the 2nd day of January, 1977 at Pritam Singh Road, Nasinu, in the Central Division, with intent to do grievous harm to VISHWA NAND s/o LAL BIHARI, did unlawfully strike the knife to the said VISHWA NAND s/o LAL BIHARI."

I must admit that I find these particulars incomprehensible and do not know what they intend to convey. To state that a person "did unlawfully strike the knife to" another person is not only ungrammatical but equivocal. Does it mean that the struck at the other person with the knife or does it mean that he simply struck at the other person with a knife? Further, as the offence charged was originally framed under subsection (a), it was essential ingredient that the appellant unlawfully did grievous harm, which should have been incorporated in the particulars but which was omitted. Had it been incorporated it would not have been necessary to make any reference to striking with a knife, as the manner in which the grievous harm was inflicted would be solely a matter of evidence.

The police prosecuting officer who had the conduct of this case should not have permitted such questionable particulars of the offence to be put before the court; but once they were before the court it was the responsibility of the trial Magistrate to ensure that the wording of the charge complied with the requirements of the Penal Code and was free from doubt. It is surprising that appellant's counsel did not take any objection at the trial, but as he did not he cannot now be heard on the matter in view of the provisions of section 323 of the Criminal Procedure Code.

Turning to the prosecution evidence, the purported eye-witnesses all gave conflicting accounts of the incident and were categorised by the trial Magistrate in his judgment as "a very unimpressive array of witnesses" who" all seemed to be more intent in putting themselves in the best light and accused in the worst light rather than factually recounting the events." In view of the unsatisfactory evidence given by them, counsel for the appellant submitted at the trial that there was no case for the appellant to answer, and this might be a convenient time to reiterate the approach to be adopted by a court on such a submission. In R v. Jai Chand (Suva Supreme Court Criminal Case No. 11 of 1972) it was held that –

"the decision as to whether or not there is a case to answer should not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mid to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence."

The trial Magistrate in this case found that there was a case to answer whereupon the appellant exercise his right to say nothing. So unsatisfactory was the prosecution evidence that in his judgment the trial Magistrate was able to come to only three findings of fact namely:-

1. There was a dispute on the appellant's property on the afternoon in question;
   
2. The prosecution had proved beyond reasonable doubt that the appellant was armed with a cane knife;
   
3. The prosecution had proved beyond reasonable doubt that the appellant wielded the cane knife in such a way that a reasonable man would be put in fear or that the appellant was likely to do injury.
   

These findings of fact are wholly inadequate to sustain the charge. Before the appellant could be convicted of an offence contrary to section 255 (b) of the Penal Code it was necessary for the trial Magistrate to be satisfied beyond reasonable doubt that:-

1. The appellant unlawfully attempted to strike a person with a knife;
   
2. The intention of the appellant in so acting was to do grievous harm.
   

I have not overlooked the penultimate paragraph of the judgment in which the trial Magistrate, when considering whether the appellant may have used reasonable force in self-defence, went on to say "on the evidence before me there is nothing to support such a view, for by all accounts the accused was not actively involved in the argument and quite gratuitously rushed out of the house with a cane knife and attempted to strike P.W.3, who would certainly not seem to be threatening anyone, indeed quite the reverse is the case for he was actively preventing Muna from taking hold of a knife probably and carrying out his threat to use it". However this, in my view, falls far short of specific finding of fact by the trial Magistrate that he was satisfied beyond reasonable doubt that the appellant did attempt to strike P.W.3 with a cane knife and, in any event, makes no reference to the intention of the appellant which is a vital ingredient of the offence charged.

In these circumstances the conviction cannot stand. It is quashed and the sentence set aside.

(Clifford H Grant)

CHIEF JUSTICE

Suva
1^st April, 1977