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Kumar v State [2008] FJHC 339; HAM038.2008; HAM039.2008 (12 November 2008)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 8 OF 2001
(Labasa Mag. Ct. Crim. Case No. 789/99)

Between:

AVINESH KUMAR
s/o Hirdesh Prasad
Appellant

And

STATE
Respondent

Mr. A. Kohli for appellant
Mr. J. Rabuku for the State

JUDGMENT

On 9 February 2000 the appellant who was unrepresented, was on his own plea convicted and sentenced to imprisonment for 3 months by Mr. S.M. Shah, Resident Magistrate at the Labasa Magistrate’s Court for the offence of assault occasioning bodily harm contrary to s245 of the Penal Code Cap.17.

The Particulars of Offence are that the appellant on 22 September 1999 at Labasa assaulted Hirdesh Prasad s/o Ram Prasad thereby occasioning him actual bodily harm. The complainant is appellant’s father.

The appeal is against sentence on the ground that it is harsh and excessive and wrong in principle taking into consideration all the circumstances of the case. The appellant has been on bail pending appeal.

Mr. Kohli for the appellant submitted that s163 of the Criminal Procedure Code was the most appropriate section to have been invoked in all the circumstances of this case being a father and son matter, rather than the imposition of a prison sentence. Also he said that the injury was very minor, namely, ‘right hand is swollen’. It did not amount to the offence with which the appellant was charged. He said that appellant has reconciled with his father. When asked by Court why it took one year for this appeal to come before the appellate Court, Mr. Kohli said that it took that long to certify the Court Record. The appellant has been out on bail for a year.

The learned counsel for the State concurs with the submissions made by Mr. Kohli and said that a more lenient sentence should have been passed on the appellant.

I have considered the submissions of both counsel and I agree that in all the circumstances of this case, bearing in mind all the mitigating factors such as the plea of guilty, the injury being very minor and the reconciliation having been reached between father and son, the said section 163 should have been invoked rather than a sentence of imprisonment.

This certainly was the most appropriate case for the application of s.163. According to the appellant’s father this was an isolated incident and his son lives with him and works on the farm. He is single. Whilst factors point in the direction of him being kept out of prison, it should be brought home to the appellant that he should be ashamed of himself for assaulting his father in the manner he did for no apparent reason. Reason or no reason this young man being an Indian if he has any knowledge of Indian culture which is so rich in culture, the Vedas teach that there are three people in life to whom a great debt and respect is owed by one. They are the mother, the father and the teacher (guru in Hindi). Children are taught to look upon them as God. In sanskrit it is stated thus: ‘Matr devo bhava, Pitr devo bhava and Acharya devo bhava’. You have certain duties towards your parents; in fact your indebtedness towards them is so great that you will never be able to discharge the debt in your lifetime but every attempt should be made to do so. I suggest that if you want to keep out of prison in future you should control your temper (called ‘krodh’ in Hindi) and start reading the life of Lord Rama from the Ramayana to guide you in your future life.

The learned Magistrate expressed his great concern at this incident which he says is on the rise, and quite rightly so. However the sentencing principle should not be ignored. Imprisonment in a case of this nature would be the last resort when all other options have been eliminated. As I said before, there were other mode of punishment available to suit this case but this was not explored. The learned Magistrate, it appears, has been carried away by the fact that the son attacked his father which in his opinion should land the appellant behind bars.

For these reasons the sentence was harsh and excessive and wrong in principle The appellant should have been convicted of the lesser offence of common assault and not for the one he is charged. I therefore set aside the conviction for assault occasioning actual bodily harm and substitute it with one of common assault.

The sentence of 4 months’ imprisonment is also set aside and the case terminated. Whilst doing so I will require the appellant to apologise to his father in my presence and promise that he will not behave in this manner towards him in future. Perhaps I should also tell the father not to run to Police on such matters and wash dirty linen in public. This incident was a storm in a tea cup; it was quite capable of being sorted out within the family.

The appeal is allowed.

D. Pathik
Judge

At Labasa
24 May 2001