Prasad v Reginam [1984] FijiLawRp 6; [1984] 30 FLR 51 (15 November 1984)

[1984] 30 FLR 51

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

JAMENDRA PRASAD
SURUJ PRASAD
AJODHYA PRASAD
RAM SAMUJH

v

REGINAM

Speight, V. P., O'Regan, J. A.,Casey, J. A.

15 November, 1984

Criminal Law − death caused by blows inflicted of varying degrees of severity by appellants − aiding, abetting, counselling and procuring the death − defences of self defence, lack of intent and provocation − duty of Trial Judge when particular defence disclaimed by counsel for accused even though there had been some evidence to support it − application of proviso.

K. Bulewa for the Appellants
V. J. Sabharwal for the Respondent

Appeal against a conviction of 21 May 1984 of the 4 appellants for the murder of one Surendra Prasad at Baulevu Nausori on 3 April 1983.

The circumstances summarised by the Court in its reasons for judgment included that a quarrel occurred involving amongst others the deceased and the appellants on the evening of the relevant day. The events associated with the death of Surendra Prasad were summarised in those reasons thus. Referring to Prosecution evidence, the reasons for judgment proceeded:

"They then heard the voices of men approaching and these turned out to be the four appellants together with two other brothers Ram Prasad and Akun Prasad. It seemed that these men were intending to confront or attack Surendra.

Satya Nand said that he went towards them and told them to stop but he was told by Jamendra who was leading the group to get out of the way or he too would be hit. According to the evidence of Satya Nand and later his brother Vishwa Nand, all these men were carrying weapons of some sort. They said Jamendra Prasad had an iron rod. Ajodhya had an axe in one hand and a knife in another. Suruj Prasad had a benzine lamp which he later exchanged for Ajodhya's knife and Ram Samuj also had a spear. According to these two prosecution witnesses the men surrounded Surendra. Jamendra struck him twice on the head with a weapon and Surendra collapsed. The others gathered round and other blows were struck to the lower parts and legs of Surendra's body. Satya Nand alleged that both Suruj and Ram Samuj struck blows and Ajodhya was also present but was not particularly noticed as hitting the man. It was then said that the attackers stood back and some remarks were made indicating that they concluded, correctly as it turned out, that Surendra had been killed."

On behalf of the appellants it was submitted:

(a