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State v Ali [2018] FJHC 491; HAC018.2017 (8 June 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 018 of 2017

[CRIMINAL JURISDICTION]

STATE

V

IMSHAD IZRAR ALI

Counsel : Mr. M. Vosawale and Ms. S. Shameem for State

Mr. A. K. Singh for Accused

Hearing on : 15 May 2018 to 05 June 2018
Summing up on : 07 June 2018
Judgment on : 08 June 2018

JUDGMENT

1. The accused is charged with the following offence;
   

Statement of Offence

Murder: contrary to section 199 and 200 of the Penal Code Act 17.

Particulars of Offence

IMSHAD IZRAR ALI on the 1^st day of November, 2009 at Samabula, Suva in the Central Division murdered Rajeshni Deo Sharma.

2. The assessors have returned with the unanimous opinion that the accused is guilty of the above offence.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 07^th June 2018 and the evidence adduced during the trial.
   
4. The prosecution led the evidence of thirteen witnesses and the accused gave evidence in his defence.
   
5. The prosecution relies on the admissions made by the accused in the cautioned interview PE 1 and the charge statement PE 9 and circumstantial evidence, to prove the case. The accused totally denies the allegation. According to the accused there are three versions in the cautioned interview; the first two versions are lies he told the police due to oppression and the unfair treatment he was subjected to and the third version is a fabrication by the police. The accused claims that the charge statement was also fabricated by the police.
   
6. In my view all the prosecution witnesses were credible witnesses. The defence highlighted inconsistencies between previous statements made by several prosecution witnesses and the evidence given by them. In my view, those inconsistencies did not shake the basic foundation of the prosecution case and they were not capable of affecting the credibility of those witnesses.
   
7. The defence also claimed that PW 2 was a witness with a motive to lie against the accused. PW 2 admitted that she did not like the accused and certain inconsistencies were pointed out by the defence between her evidence and the previous statement made by her to the police. However, from her evidence, what is relevant to this case according to the prosecution was the evidence regarding the nature of the relationship the accused had with the deceased. The prosecution did not want to use her evidence as propensity evidence. Considering her demeanour when she gave evidence and the nature of the inconsistencies, I find that the credibility of her evidence in relation to the relationship the accused and the deceased had before 01/01/09 was not affected due to the issues raised by the defence.
   
8. Given the demeanour and deportment of the accused when he gave evidence and considering all the evidence adduced, I did not find the accused to be credible as a witness.
   
9. In this case, it is not disputed that soon after the cautioned interview commenced, the accused was produced before PW 9 for a medical examination on the request made by the accused. The evidence of PW 9 was credible and reliable. She clearly said that there were no signs of assault on the accused’s body. Considering her evidence and the evidence of the accused regarding the manner he was assaulted, the laceration of 1cm x 1cm which PW 9 observed on the accused’s abdomen is not consistent with the nature of assault the accused claimed that he was subjected to.
   
10. Therefore, the medical evidence presented through PW 9 supports the evidence of PW 7 who was part of the arresting team, PW 8 who was the interviewing officer, PW 1 who was the witnessing officer and PW 13 who was the investigating officer that the accused was not assaulted from the time he was arrested and till he was examined by PW 9.
    
11. I am satisfied that the accused was sufficiently explained all his rights before he was interviewed under caution and before the charge statement was recorded. The answer to Q 297 which is “I wish to remain silent” and the answer “no comments” given to Q292 and Q 294 indicates that the accused had understood his right to remain silent and the interviewing officers had allowed the accused to exercise that right.
    
12. I am satisfied that the interviewing officers had allowed the accused to exercise his right to counsel. I am satisfied that the police officers have taken every possible step to treat the accused properly and fairly when the accused was kept in police custody.
    
13. I accept the evidence of the interviewing officers that all answers stated in PE 1 and PE 9 were given by the accused and nothing was fabricated by the police. With regard to there being no answer recorded for question 346, I note that in PE 1 which is the original hand written statement, this question is the last question on the relevant page and there is no space to write the answer. On top of the next page a new question is recorded. I accept the explanation given by the police that this was an oversight and it is not because the police forgot to ‘fabricate’ as the accused said in his evidence.
    
14. All in all I am satisfied beyond reasonable doubt that the answers recorded in PE 1 and PE 9 were given by the accused and they were given by the accused voluntarily.
    
15. In the cautioned interview [PE 1], the accused had initially said that he pushed the deceased after she ‘grilled’ him against the sink with a chair where the deceased fell backwards on the kitchen floor together with the chair [Q 195]; upon seeing the blood he became unconscious and he “collapsed on the chair on her neck” [Q.196]; and after he regained consciousness he got hold of the mobile phone cord which was hanging from her neck [Q.208]; and pulled it in opposite direction and then stood on her neck [Q.209]. According to the accused this is the first version he fabricated.
    
16. Then in Q.231, the accused had again been taken to the beginning of his story as he had said in answer to Q.188 about going to watch a movie with the deceased at village 6 and then for shopping. This time he was asked whether there was any arguments between the two during that period. The accused had stated that there was an argument about a recharge card [Q.233]. According to the accused there were arguments with the deceased from that moment and in answer to Q.243 he had stated that he had asked for money from the deceased to by kerosene. The answers about the recharge card and kerosene was the second version according to the accused that he fabricated.
    
17. The accused says the third version is found after Q.247 and that version was fabricated by the police. After Q.247, the accused had said that, when he told the deceased not to quarrel and asked her whether he could go to Nadi, the deceased told him “it was her house and she will decide when I should go” [Q.247]; he got angry, he brought the iron rod (which he was later shown and he had identified as the same exhibit tendered as PE 7) which was inside the toy box in front of the bedroom and struck the deceased from the back [Q.248 – Q.251]; when she turned around and sat down, he struck her again on the head where she started bleeding and then fell backwards [Q.255 – Q.256]; he kicked the left side of her face and pressed on her neck with his right leg [Q.257]; and then he put the kettle cord (which he was later shown and he had identified as the same exhibit tendered as PE 2) from underneath the deceased’s neck and pulled it across on the opposite direction [Q.259].
    
18. It was submitted by the defence that the iron rod tendered as PE 7 was planted by the police. It was pointed out that there is no photograph of the said iron rod in the photographic booklet tendered as PE 6 and the fact that there is no photograph supports the said contention. There is no rule that all exhibits should be photographed. The absence of such photograph does not make the prosecution evidence regarding the recovery of the iron rod from the scene on 14/11/09 after it was shown by the deceased, unreliable. PW 6 explained that the reason such photograph is not there in PE 6 is because PE 6 was prepared before 14/11/09.
    
19. Coming back to the cautioned interview, in my view, PE 1 does not contain three versions. There are only two. The first version is where the accused initially says that he pushed the deceased and then he strangled her using a mobile phone cord. The second version is that he struck the deceased with PE 7, kicked her on the left side of her face, pressed her neck with his right leg and strangled her with PE 2. The answers about the recharge card and kerosene had been given when he was taken back to the beginning of his story and was asked to explain step by step.
    
20. According to PW 11, injury No 10 (as noted in the postmortem report PE 11) which was on the side of the skull of the deceased could have been caused by PE 7. He had observed injuries consistent with the use of severe pressure on the area of the neck where injury No 01 and No. 02 were noted. He said injury No. 07 noted on the left jaw bone could have been caused by a kick. He said the cause of death was asphyxia due to strangulation and in his opinion, the kettle cord tendered as PE 2 could have caused injury No. 01 and injury No. 02. PW 11 further explained that the injuries are not consistent with injuries that are expected to be found if someone was pushed backwards.
    
21. Given the above medical evidence, I find that the second version the accused had given in PE 1 which I have outlined in paragraph 19 above is true and accordingly I am satisfied beyond reasonable doubt that the accused did commit those acts as he had admitted which were unlawful. I am also satisfied beyond reasonable that the accused caused the death of the deceased by committing those unlawful acts.
22. Considering the nature of the injuries inflicted, and the answers in PE 1 that I find to be true, I am satisfied beyond reasonable doubt that the accused had the intention to cause the death of or to do grievous harm to the deceased. Given all the evidence, I find that the statement in the charge statement [PE 9] to the effect that the accused did not have ‘serious intentions’ to kill the deceased is a false statement.
    
23. It does not occur to me that there was provocation within the meaning of section 204 of the Penal Code.
    
24. In the circumstances, I find that the prosecution has proved all the elements of the offence of murder in terms of section 199 of the Penal Code beyond reasonable doubt.
    
25. For the reasons given above, I agree with the unanimous opinion of the assessors that the accused is guilty of the offence as charged.
    
26. I find the accused guilty of the offence of murder and convict him accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecution for State.
A.K.Singh Lawyers for Accused.