IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 026 of 2008

Between:

THE STATE
Appellant

And:

BISSUN DEO s/o Ram Prasad
NILESH KUMAR s/o Bissun Deo
ANIL KUMAR s/o Suren Prasad
Respondents

Hearing: 4th September 2008
Judgment: 12th September 2008

Counsel: Ms V. Lidise for State
Mr. H. Shah for Respondents

JUDGMENT

	The Director of Public Prosecutions appeals against the acquittal of the Respondents on the following charge:

Statement of Offence

GRIEVOUS HARM: Contrary to section 227 of the Penal Code, Cap 17.

Particulars of Offence

Bissun Deo s/o Ram Prasad, Nilesh Kumar s/o Bissun Deo, and Anil Kumar s/o Suren Prasad on the 19th day of July 2004 at Lautoka in the Western Division, unlawfully and maliciously did grievous harm to Chandar Prakash s/o Devi Prasad.

	The case was first called on the 9th of January 2006. The charge was laid on the 15th of November 2005. On the 11th of July 2006, after several adjournments, the court was told that the 3rd Accused Rajneel Kumar had migrated to the United States of America. There were further adjournments caused partly by the non-appearance of the 3rd and 4th Accused. The trial eventually commenced on the 11th of September 2007.

	The evidence of Prema Wati was that on the 19th of July 2004, she was attending the funeral rites of a relative when she heard noises outside. She ran to the shed and saw that a fight was in progress. Her brother Chandar Prakash was on the ground and Rajneel Kumar (the absent 3rd Accused) was kicking him, Nilesh Kumar (the 2nd Accused) was holding his collar and three people were holding back the 3rd Respondent. She told them off, and the 1st Respondent said "mai chod, mother fucker, go away from here." The kicking stopped and Chandar Prakash was taken to the hospital with a bleeding eye. Under cross-examination it was suggested to her that there was no fighting and that she was telling lies. She disagreed.

	There then was medical evidence that Chandar Prakash had been involved in a car accident in 2002 as a result of which he had undergone a lense implant in 2003.

	Chandra Prakash then gave evidence that after the head-shaving ritual on the 19th of July 2004 he found that there was no water to mix yaqona. The 1st Respondent became annoyed about it and swore at him. The record then reads:

"I said don’t talk like that then Bissun threw a punch at me, it grazed my cheek, then came and punched me on my stomach, he is sitting here and then Nilesh came and held me from the back and then Rajneel punched me on my stomach."

He then said:

"Rajneel punched me on the stomach and Nilesh punch me in the eye. Rajneel punched me in the left eye. I received injuries in my eye and it became watery and I fell on the ground. When I fell, Rajneel, Nilesh and Bissun kicked me, people stopped the fight and my wife came to take me to the hospital."

He was in hospital for 8 days, and lost vision in his left eye.

	Under cross-examination, it was suggested to him that Bissun had pushed him, and that he had fallen into the drain, sustaining injuries. He denied this. He agreed that he had sustained no injury to any other part of his body. It was suggested to him that he had told the doctor that it was Bissun who had punched him in the eye and he agreed, but he said in re-examination that he had told the doctor this because other people had told him that it was Bissun who had punched him in the eye.

	Praveen Kumar’s evidence was that Bissun (the 1st Respondent) punched Chandar Prakash in the face, Anil (the 3rd Respondent) punched him in the stomach "and Rajneel said hit on the eye and he punched him on the eye. Bissun said punch him on his eye, then Chandar Prakash fell in the drain and then his wife and sister came…" Praveen Kumar was Chandar Prakash’s neighbor. He maintained his evidence under cross-examination.

	The interview records of the Respondents were tendered without objection. Bissun Deo (the 1st Respondent) said that he did not punch Chandar Prakash at any time and said that "I think when I pushed him, he fell to the ground and he got injured."

	The 2nd Respondent told the police that an argument had developed between his father (the 1st Respondent) and Chandar and they "struggled." He went to assist and saw Chandar falling backwards into the drain. He denied kicking him. The 3rd Respondent said that an argument had developed between the 1st Respondent and Chandar, and that they struggled. He then intervened to separate them and in the process Chandar fell into the drain. Chandar complained he had got injured in the eye and was taken to the hospital.

	The 1st Respondent chose to give sworn evidence. His evidence was that Chandar Prakash grabbed his collar and the people around them tried to separate them. Chandar tried to escape and he fell down a drain. The 1st Respondent said he neither pushed nor punched him. Under cross-examination he admitted pushing Chandar Prakash but said that he fell into the drain later and not as a result of the push.

	The 2nd and 3rd Respondents remained silent. Judgment was delivered on the 7th of December 2007. After defining the offence the learned Magistrate said that it was not in dispute that there was an exchange of words leading to a fracas between Chandar Prakash and the Respondents as a result of which Chandar Prakash received injuries to his left eye causing loss of vision in that eye. He said that Chandar Prakash’s version of events was that the 2nd Respondent and 3rd Accused (Rajneel Kumar) punched him in the left eye and that the 1st, 2nd and 3rd Accused had kicked him. He said that Chandar Prakash agreed to having given an inconsistent account to the police in that he told them he did not know who kicked him and that it was the 3rd Accused who punched him in the eye and not the 1st Respondent.

	The learned Magistrate referred to Praveen Kumar’s evidence that the 1st Respondent and the 3rd Accused had punched Chandar Prakash in the eye. He did not refer to the evidence of Praveen Kumar that the attack on the eye was targeted.

	The judgment then reads:

"It is not the prosecutions case that all accused had previously conspired to assault Chandar Prakash. The whole fracas just erupted after some exchanges between the accused and Chandar Prakash and Chandar Prakash stated that accused 3 hit him on the left eye and he is not on trial at present as there is a bench warrant pending against him and according to Chandar Prakash the other punching and kicking did not cause him any injury and therefore cannot come within the definition of "grievous harm" as earlier stated."

He then acquitted all the Respondents of the charge.

The appeal

	The grounds of appeal were initially as follows:

"(a)	that the learned trial magistrate erred in law and fact in acquitting the Respondents.

(b)	That the learned trial Magistrate erred in law and fact in not convicting the Respondents on the evidence, in their capacity as aiders and abetters involved in a joint enterprise.

(c)	That in the alternate, the learned trial Magistrate erred in law and fact in not convicting the Respondents of the lesser offence of common assault."

	However at the hearing of this appeal, counsel for the State abandoned the alternate ground that there could have been convictions for common assault. She conceded that the elements of the offence of common assault did not necessarily amount to a part of the offence of grievous harm. She was right to make that concession. She also conceded that there was no evidence of a common intention because the fight broke out spontaneously and that therefore she could not submit that the Respondents had been involved in a joint unlawful enterprise. She therefore confined her submissions to the ground that each of the Respondents were aiders and abetters of the principal offender (whoever he was) and that each was guilty of the offence charged. She submitted that the learned Magistrate found as a matter of fact that Chandar Prakash’s evidence was reliable, and that on that basis he should have convicted the Respondents.

	Counsel for the Respondents submitted that the learned Magistrate found that the evidence of the prosecution witnesses was so contradictory and inconsistent that even on that evidence he could not be satisfied beyond reasonable doubt of the Respondents’ guilt.

	Unfortunately, the learned Magistrate did not express himself clearly as to which version of the facts he accepted. Did he accept Chandar Prakash’s evidence that Rajneel (the 3rd Accused) had caused the eye injury and that the 1st, 2nd and 3rd Respondents had aided and abetted Rajneel in the assault? Or did he accept the evidence of the 1st Respondent that there was only a push and a fall? We do not know. However an alternative finding might have been that there were several different versions before the court; Chandar Prakash’s version in court, Chandar Prakash’s version to the doctor, Chandar Prakash’s version to the police, Praveen Kumar’s evidence of "hit him in the eye", the 1st Accused’s version in his caution interview and the 1st Accused’s version in court. Although it is arguable (and State counsel did indeed so argue) that in a fight different versions are likely and that all that was clear was that there was a fight in the course of which someone did grievous harm unlawful and maliciously to Chandar Prakash (aided and abetted by the Respondents), that is not necessarily the only possible finding of fact. An alternative view is that either Rajneel or the 1st Respondent inflicted the eye injury unassisted by the other Respondents. Further, the learned Magistrate made no finding as to aiding and abetting, finding only that because it was Rajneel who hit Chandar Prakash in the eye (according to Chandar Prakash) the Respondents must be acquitted.

	He erred in this finding. He did not consider the law on aiding and abetting and did not say whether he accepted that the Respondents’ punching and kicking occurred and that those acts were acts intended to assist Rajneel. In failing to consider the law on secondary offenders he erred. Section 21 of the Penal Code does not define what constitutes an aiding and abetting. However the common law does. An aider and abetter must share the same mens rea as the principal offender (Abendra Kumar, Manoa Naqase and Sivorosi Raikali v. R [1987] SPLR 131), or must at the very least know what the principal offender intends to do, and act with the intention of assisting him/her (Sheik M. Hussein v. State [2001] AAU0032/98 and State v. Prakash Chetty [2001 AAU0034/98).

	However, the inconsistencies in the evidence and the failure of the learned Magistrate to articulate which version he accepted as a matter of fact, lead me to the conclusion that this appeal cannot be allowed. Certainly Praveen Kumar’s evidence on its own was capable of proving that there was an intention to cause grievous harm, in that the attack on the eye was targetted, and that each of the Respondents knew of that intention and knowingly assisted in it. However the learned Magistrate made no reference to this part of the evidence. An appellate court may not substitute its own findings of fact on appeal. I have not seen the witnesses, I had not heard their evidence, and I am in no position to decide on the credibility of Chandar Prakash, Praveen Kumar or the 1st Respondent. In essence, I do not know what happened during the incident and I am in no position to accept any version of the facts. A retrial is impossible after acquittal under section 319(1)(b) of the Criminal Procedure Code, and a substituted verdict of guilt could only be entered if that was indicated on the record, beyond reasonable doubt.

	Despite the learned Magistrate’s error of law, I can find no clear indication of the Respondents’ guilt beyond reasonable doubt. There are too many contradictions in the evidence, from the identity of the principal offender, to the nature of the attack on Chandar Prakash by each of the Respondents, to their mens rea in relation to aiding and abetting the principal offender.

	In these circumstances, I must dismiss the appeal.

Result

	This appeal is dismissed.

Nazhat Shameem
JUDGE

At Lautoka
12th September 2008