Ram v R [1977] FJSC 63; Criminal Appeal 081 of 1977 (15 August 1977)

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

Criminal Appeal No. 81 of 1977

BETWEEN

ABHI RAM
s/o Rameshwar
Appellant

AND

REGINAM
Respondent

Mr. Pillay and Mr. Tappoo, Counsel for the Appellant
Mr. Ikbhal Khan, Counsel for the Respondent

JUDGMENT

The appellant was convicted before a Magistrate for an act intended to cause grievous bodily harm contrary to Section 255(a) of Penal Code, which carries a maximum penalty of imprisonment for life. It is a very serious offence. Not only must grievous bodily harm be caused but it must have been the accused's intention to cause such harm.

When charged the appellant had pleaded guilty and the facts outlined by the prosecution showed that the accused and the complainant were neighbouring farmers. There had been a dispute when the complainant out the grass in the drain separating the farms and the accused throw the grass back into the drain. The complainant called a member of the Advisory Council who settled the matter, but then as they were going away the accused struck at the complainant with a hoe. Injuries were caused to the complainant by way of a cut on his scalp and bruises on the forearms.

In admitting the facts the accused said he used the haft of the hoe and not the blade although the outline of facts had suggested otherwise. He also stated that the complainant was always annoying him and swearing at him.

The medical report revealed the injuries I have described and the accused admitted it.

The appeal is directed against the conviction for causing grievous bodily harm with intent, and also complains that the sentence of 18 months was too severe.

The Crown does not oppose the grounds of appeal.

It was submitted by Mr. Pillay for the appellant that there was no evidence at all to indicate that the complainant was detained in hospital. The medical report makes no such reference, and it is obvious that the complainant's injuries were far from serious. There is no suggestion that the complainant was incapacitated for even a day or lost anytime off work.

With respect I would direct the attention of the learned Magistrate to the fact that the words "grievous bodily harm" mean just that. It has to be an injury which amounts to a maim or dangerous harm. This is indicated in Section 4 of the Penal Code in defining or explaining what is meant by grievous harm, and it goes on to say that it must seriously injure or permanently injure health, or that it should be likely to seriously or permanently injure health, or cause permanent disfigurement, or cause permanent injury (or damage) to any external or internal organ, member or sense.

I am sure that on reflection the learned Magistrate would concur that the minor cut on the scalp and the bruise on each forearm could not possibly bring the offence within the definition of grievous bodily harm.

There was of course some bodily harm. One cannot deny that bruising and a scalp injury does amount to a hurt or harm. However, the legislation differentiates strongly and widely between bodily harm and grievous bodily harm.

Section 4 of Penal Code describes "harm" as any bodily hurt, disease or disorder whether permanent or temporary. If the bodily hurt is permanent it will no doubt come within the description of "grievous bodily harm." If it is temporary and of short duration and not dangerous, as in the instant case one cannot regard it as more than "non-grievous" bodily harm or hurt. Causing of such lesser injuries is covered by S.277 of Penal Code.

There is no doubt on the facts as admitted by the accused that the offence did not amount to a grievous bodily harm but simply to "harm" under S.277 of Penal Code. The lesser offence carries a maximum of 5 years imprisonment and in imposing sentence the Magistrate has to be guided by the extent of the harm caused. If it falls just short of grievous it calls for a higher sentence than if it is a slight injury.

In passing sentence the Magistrate referred to my judgment in Regina v. Shaukat Ali, Cr. Appeal 44/76 in which I drew attention to the prevalent use of cane knives in the west of Fiji during quarrels and assaults and the need to inhibit such tendencies by appropriate sentences.

Nevertheless an accused who uses a cane knife to cause grievous bodily harm will be liable to a much more severe sentence than one who, although using a cane knife, only inflicts minor injuries.

One must bear in mind not only the weapon used but the seriousness of the injuries inflicted. The extent of the injuries will help to indicate the amount of malice, vindictiveness, etc. behind the attack which should be reflected in the sentence.

In the instant case it would appear that the complainant put up his arms to defend himself and in that way he probably received the bruises on his forearms, whilst some part of the hoe obviously struck his head and cut it.

The prosecution should not have charged the appellant under S.255(a) of Penal Code. The facts did not justify bringing such a charge. I think that it should be emphasised to the police that they should give more consideration to the charge selected in such circumstances and not to place too much of a burden upon busy Magistrates in having to meticulously check the charges put before them.

I notice that in Cr. Appeal 34 and 35/77 the learned Chief Justice, where there had been a plea of guilty under S. 255(a) of Penal Code reduced the conviction to one under S.277 of Penal Code. I follow the same course.

There is some doubt as to whether the appellant aimed at the complainant with the haft or the blade of the hoe. In the circumstances the doubt not having been resolved, the appellant must have the benefit of that doubt and of course this will have to be reflected in the sentence.

The conviction under Section 255(a) P.C. is set aside and replaced by one for the lesser offence of assault occasioning actual bodily harm contrary to Section 277.

The sentence is reduced from 18 months to one of 3 months imprisonment and when remission is taken into account it would seem the appellant will have little time, if any, left to serve.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
15th August, 1977