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State v Narayan [2020] FJHC 321; HAC93.2019 (20 April 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 93 of 2019

[CRIMINAL JURISDICTION]

STATE

V

CHRISTOPHER NARAYAN

Counsel : Ms. J. Fatiaki for the State

Ms. S. Hazelman with Mr. A. Waqanivavalagi for the Accused

Hearing on : 31 March - 03 April 2020
Summing up on : 03 April 2020
Judgment on : 20 April 2020

JUDGMENT

1. The accused is charged with the following offences;
   

FIRST COUNT

Statement of Offence

Murder: contrary to Section 237 of the Crimes Act, 2009.

Particulars of Offence

CHRISTOPHER NARAYAN on the 4^th day of March 2019 at Nakasi in the Central Division murdered JAZLEEN JASPREET KUMAR.

SECOND COUNT

Statement of Offence

Common Assault: contrary to Section 274 of the Crimes Act, 2009.

Particulars of Offence

CHRISTOPHER NARAYAN on the 4^th day of March 2019 unlawfully assaulted LOUISA MARIA KUMAR.

2. During the summing up, the assessors were directed to consider the lesser offence of manslaughter in relation to the first count.
   
3. The assessors have returned with the unanimous opinion that the accused is guilty of the first count and also of the second count as charged.
   
4. I direct myself with the summing up delivered to the assessors on 03/04/20 and the evidence adduced during the trial.
   
5. The prosecution called four witnesses. The accused gave evidence and called one other witness.
   
6. I would first deal with the first count of murder.
   
7. I have decided that the best way to approach the case in relation to the first count is to examine the evidence of PW4, the pathologist who conducted the postmortem examination of the deceased first, in order to ascertain the cause of death.
   
8. There was no challenge on PW4’s expertise and her experience. I would regard her as an expert witness. According to PW4 the cause of death of the deceased was massive haemoperitoneum, which in simple terms is the accumulation of blood in the abdomen. This was mainly due to bleeding as a result of the injury to the liver caused by rib fractures. She said that bleeding into the chest cavity due to the injury to the lungs which was also caused by rib fractures was a contributing condition. She said that the most of the bleeding was due to the injury to the liver and not seeking medical attention. In her opinion, the time taken for the deceased to succumb to the (internal) injuries should have been less than 12 hours.
   
9. PW4 said that she observed multiple rib fractures. Fractures were seen on the left side of the rib cage, on the right side of the rib cage and also on the back. According to the doctor, these fractures could have been caused by blunt force trauma on the relevant areas, that is, to the sides of the deceased’s body and to the back. She explained that blunt force trauma could have been from a motor vehicle accident, a fall or could have been due to a punch or a kick to the area. So, according to PW4, if the injuries to the ribs were caused by an assault, there should have been at least one assault each, on each side of the body (i.e. on the lateral aspects of the chest) and one assault on the back, to cause those injuries. That is, at least three blows on the ribs.
   
10. She also said that the liver is located on the right side of the body (abdomen) and the injury she noted on the liver was on the right lobe of the liver which is the largest part of the liver. This injury on the liver is significant because according to PW4, the massive collection of the blood in the abdomen which was the main cause of death, had occured mainly due to the bleeding caused by the injury to the liver. In her opinion it would have taken about 6 to 12 hours for the amount of blood found in the abdomen to be collected.
    
11. PW4 also gave evidence of another pertinent injury she observed on the right lower jaw. There was a fracture in the right lower jaw of the deceased. She said this could also have been caused by blunt force trauma on that area. She also noted an opening of the soft tissue in the mouth around the jaw area which was surrounded by pus or slough. This was suggestive of an infection. She said during cross-examination that the buildup of the slough and the pus in the mouth could have started within 24 hours after the injury. When questioned by the court she said that given the extent of pus noted in this case, that could not have formed within a period of 6 hours from the time of injury. In her opinion, the injury to the lower jaw could be three days or less than three days old.
    
12. She also said that the deceased could have had problems eating food like chicken and rice. She confirmed that she did not find any food particles that suggested that the deceased had eaten chicken and rice before her death. But she had observed that there was a dull white, grainy, viscous fluid which was a thick fluid in the stomach and in her opinion the deceased would have eaten something very soft or fluid. PW4 also agreed that the deceased would have shown signs of immense pain given the extent of the injury found on the jaw.
    
13. PW4 had also noted injuries on the mouth of the deceased and in her opinion these injuries were recent. But there was no evidence given on how those injuries could have been caused. These injuries were on the left inner lower lip.
    
14. Briefly, according to PW4, the fractured ribs had also injured the deceased’s liver and her lungs. The bleeding from the injuries to the liver resulted in haemoperitoneum, the collection of blood in the deceased’s abdomen. There was bleeding into the deceased’s chest cavity due to the injuries to her lungs again due to the fractured ribs. It was PW4’s opinion that it would have taken less than 12 hours for the deceased to succumb to the said injuries. That would mean that the injuries to the deceased’s ribs could have been inflicted even 12 hours before her death. She also said that it would have taken 6 to 12 hours for the blood found in the deceased’s abdomen to be collected. This evidence suggests that the injury to the liver may have been inflicted at least 6 hours before the deceased’s death.
    
15. However, according to PW4 and her postmortem report PE 3, no injuries were found during the external examination of the deceased’s chest except on the right lateral aspect of the chest (the doctor demonstrated that the injury was on the side of the body, below the arm) which was a small superficial wound, 8mm x 5mm in size. Given her explanation during cross-examination, the aforementioned superficial injury was quite small and oval in nature and could have been caused by a small object. She said that it could also be a skin lesion. The evidence given by PW4 suggested that the trauma that caused the said small injury could not have resulted in the rib fractures found on the deceased especially on the right ribs.
    
16. It follows that according to the evidence adduced, PW4 did not find any evidence on the deceased’s chest (front part of the deceased’s body) of an assault (blunt force trauma to be precise), that could have fractured the ribs. In fact her evidence did not reveal that she noticed evidence of any external injury caused by the blunt force trauma that fractured the deceased’s ribs. I find this a serious shortcoming in PW4’s evidence. Because, I am unable to accept that it is possible to punch a two and a half year old child or, in other words, for a two and a half year old child to sustain injuries, that would cause multiple rib fractures without leaving a mark on the external surface of the body.
    
17. Nevertheless, the fact remains that the rib fractures sustained by the deceased could not have been caused by one punch or one blow. According to PW4, there should have been at least three blows on the respective areas where the fractures were noted.
    
18. I will now move onto the evidence of PW3 for the reason that her evidence was important in ascertaining the time of death and also because of the injuries she observed on the deceased’s body. PW3 was the doctor who attended to the deceased when the deceased was brought to the Valelevu Health Centre around 5.00am on 05/03/19. Her expertise and the experience was also not challenged and I have no difficulty in accepting that she had the capacity and the expertise to provide opinions she came out with in her evidence. In contrast to the findings of PW4, PW3 had observed bruises that were purplish-black in colour on the anterior chest wall. That is the front side of the deceased’s chest. PW3 also diagnosed broken rib bones when she felt the deceased’s chest wall. But then she was not asked whether the injury she observed on the chest wall corresponded to the broken ribs and she was not asked to state the exact location of that injury. Her evidence also did not reveal the location of the fractures because what she observed was the gathering of the air bubbles underneath the surface of the skin which is caused by the broken bones. In her opinion, the purplish-black colour injury she noted had been caused by blunt force trauma within 24 hours.
    
19. PW3 also said that when she examined the deceased, the body had entered into rigor mortis, which occurs 2 to 3 hours after the death. Accordingly, the time of death would have been around 2.00am on 05/03/19.
    
20. Given the evidence of PW4 then, with regard to the time the deceased may have succumbed to the injuries and the time it took for the blood found in the stomach to collect, the injuries to the deceased’s ribs and then to the liver would have been inflicted between 2.00pm and 8.00pm on 04/03/19. The injury found in the right lower jaw would have been inflicted at least before 2.00am on 04/03/19 as PW4 said that it would take around 24 hours for the pus and the slough to start forming and the said injury could have been inflicted even on 01/03/19 as she said it could be 3 days old. But this injury to the jaw could not have been inflicted around 8.00pm on 04/03/19 as PW4 clearly said that given the extent of pus found, it (the extent of pus found) would not have formed within 6 hours from the time of injury.
    
21. Thus far the following facts with regard to the injuries sustained by the deceased are established.
    1. The injury to the jaw was inflicted well before the injuries to the ribs.
    2. The injury to the jaw could not have been inflicted during day time on 04/03/19.
    100. The injuries to the ribs would have been inflicted between 2.00pm and 8.00pm on 04/03/19.
    4. The fractures on the right side of the ribs substantially contributed to the death of the deceased.
    5. There was no clear evidence that the fracture on the left side of the ribs substantially contributed to the death of the deceased.
       
22. Now the question is who inflicted the injuries that caused the death of the deceased or rather how did the deceased sustain those injuries?
    
23. The prosecution asserts that it was the accused and that he did so by punching the deceased on 04/03/19. To give a very brief background based on the evidence that is not disputed, regarding the relationship between the accused, the deceased and the other two prosecution witnesses; PW2 was the biological mother of the deceased and according to her the accused was the deceased’s biological father. The accused did not dispute this evidence of PW2 that he is the biological father of the deceased though the birth certificate of the deceased does not carry the accused’s name as the deceased’s father. At the time material to this case, PW2 was residing with the accused at Lot 17 Koroba Road Nakasi, with the deceased and her younger daughter. PW1 was the neighbhour who was residing in the adjoining flat.
    
24. According to PW1, she saw the accused punch the ‘little girl’ first on the chin and then on the left ribs. After this second punch, the little girl fell down and was motionless. So there were only two punches, one to the chin and one to the left ribs. PW1 said that she saw this around 9.00pm on 04/03/19. It is pertinent to note that there were two small girls or little girls at the accused’s flat at the material time and PW1 did not specify which small girl was assaulted by the accused. Given the burden of proof which rests on the prosecution, it is not proper to simply assume that PW1 may have been referring to the deceased. This evidence of PW1 in fact leads to two inferences. One is that PW1 may have referred to the younger child of PW2 by the term ‘the little girl’ and therefore the accused may have assaulted the younger child of PW2. If that is the case, since the first count does not relate to that particular child, the evidence of PW1 is not relevant to the first count and should be disregarded. The second inference is that PW1 may have referred to the deceased. However, if the law is correctly applied, when the same evidence leads to two possible inferences one against the accused and one in his favour, the one against him should be disregarded.
    
25. Nevertheless, for the purpose of analyzing the evidence let us assume that PW1 was referring to the deceased when she said ‘the little girl’. Then PW1 is the only witness who came up with the time which the alleged assaults were made by the accused on the deceased. PW1 said that she went out of her flat around 9.00pm on 04/03/19 to witness PW2 and the accused argue with each other. She said that the duo used to always argue. The first question came to my mind was, why did PW1 decide to go out of her flat and look at how the two were arguing on that day and at that time? What made her do that on that day and at that time? On the other hand, her evidence was that her husband had warned her not to discuss about what’s going on in the accused’s flat with him. According to PW1, her husband told her that he might do something to her if she does not take heed of that warning. This was the reason she gave for not taking steps to report the assault on the deceased to the police. If that was the case, could it be reasonably expected from PW1 to go out of the house and spy on the accused and PW2 in the night on 04/03/19 around 9.00pm?
    
26. The doubt in my mind about PW1’s evidence was compounded due to the ambiguity on the place from which PW1 allegedly witnessed the incident. PW1 clearly showed the place she was standing on the photograph, PE2B. That was next to the wooden structure, on to the left. She clearly said that she was leaning against the ‘tin iron’. Later on, though PW1 said that she saw the incident through the gaps in the wooden structure, she did not say that she moved from the place she initially said she was standing, when she witnessed the incident.
27. During cross-examination of PW2, when it was suggested to her that her view of the sitting room of her flat would be blocked if she was standing at the place PW1 pointed on PE2B as the place PW1 was standing when PW1 witnessed the alleged assault, PW2 agreed with that suggestion.
    
28. Therefore, I have a doubt regarding the credibility of the evidence given by PW1.
    
29. Before making a final decision on the credibility of PW’1 evidence, I will now move onto PW2, the deceased’s mother. According to PW2, the accused punched the deceased on the chin and then on the ribs. Again, there were only two punches and only one to the ribs. PW2 was not asked and she did not say whether it was the right side of the body or the left side that was punched. PW2 was also not asked and she did not mention the time this alleged assault take place.
    
30. PW2 said that she got one of her friends to bring a packet of noodles in the evening on 04/03/19 because there was nothing in the house to cook. She met this friend near the driveway around 6.00pm on 04/03/19. According to PW2, the reason for the argument that led to the alleged assault on the deceased was a bracelet given by this friend to PW2 on her request when she met this friend to collect this packet of noodles. However, later on in her evidence, PW2 said that she fed the deceased some chicken and rice that night. These were leftover from what she prepared for lunch. Further, during cross-examination it was suggested to PW2 that she woke the accused up around 7.30pm the same night to have rice and chicken and her initial answer was that she cannot recall the time. But PW2 agreed that she woke the deceased up and she did not deny the fact that she woke him up to tell him to eat the chicken and rice. So her evidence was clear that she cooked chicken and rice on 04/03/19 and left over of that chicken and rice were available even after the deceased was allegedly assaulted.
    
31. Accordingly, there are two inconsistent versions with regard to the availability of food on the day in question. One is, there was food that night for them to eat which is chicken and rice and the second version is that there was no food in the house that evening and there was nothing to cook. The fact whether or not there was food at the evening in question is significant because it was the non-availability of the food that ultimately resulted in the argument between PW2 and the accused which led to the assault on the deceased. That is, PW2 met her friend who gave her the bracelet in question that evening because she wanted him to bring a packet of noodles, because there was nothing to cook at home. Her evidence that there was food in the house, the rice and chicken, calls into question her evidence on meeting this friend to get the packet of noodles.
    
32. It should also be noted that PW2 said in her evidence that she fed chicken and rice to the deceased after the alleged assault and before she went to the nearby shop late in the night to buy coke and cigarettes. Then again, her evidence that she left the house late in the night to the nearby shop to buy coke and cigarette suggests that she was in a position to go to the nearby shop and buy the noodles herself in the evening if there was such a need. The inconsistencies noted above casts doubt on PW2’s evidence about receiving a bracelet in the evening in question from this friend and in turn, on her evidence on having an argument with the accused due to that bracelet that evening. If there was no argument, there could not have been any assault made by the accused as described by PW2. The accused’s position is that there was no argument on 04/03/19.
    
33. On the other hand, PW2 said in her examination in chief that the accused was on the bed the whole day on 04/03/19 because he had pus coming out of his right ear and the accused came out of the bed that evening (on his own) and helped her with the children. Then around 6.00pm she went to meet this friend after she requested the accused to look after the children. Thereafter the argument broke out and then the alleged assault took place.
    
34. Accordingly, PW2 did not say that she woke the accused up that day during her examination in chief, but during cross-examination she did not deny the suggestion that she woke him up that night to tell him to each chicken and rice. Her position was that she could not recall the time she woke him up where the suggestion from the defence was that it was around 7.30pm. The first question is, can it reasonably be expected for PW2 to forget the time the accused woke up on 04/03/19? Because if what she said during her examination-in-chief is true, the accused should be awake before 6.00pm, the time she met her friend. The second question is, if her evidence in chief regarding the argument that broke out after 6.00pm that day and what happened thereafter is true, then can it be reasonably expected for PW2 to forget what the accused was doing around 7.30pm that day? If she was telling the truth during her examination in chief, the accused could not have been sleeping around 7.30pm that night but either was arguing with her over the bracelet or was assaulting either her or the deceased at that time.
    
35. Now, both PW1 and PW2 said that there were two punches. The first punch contacted the deceased’s chin. The second punch, PW1 said that she saw the accused punch the deceased on her ‘left ribs’ and PW2 said she saw the accused punch the deceased’s ‘ribs’. First question is why did the two witnesses use the word ‘ribs’? How did they clearly see that the second punch contacted the deceased’s ribs? Rib cage surrounds the heart and the lungs. Neither PW1 nor PW2 say (or was asked) the exact location this second punch landed on the deceased’s body. At least whether the punch was directed to the front side of the body, the back or one of the sides. So, PW1 and PW2 said the accused punched the chin and then the ribs without giving clear details.
    
36. In relation to PW1, did she simply say that the accused punched the chin and then ribs because the police explained to her about the deceased’s injuries before her statement was recorded as admitted by her during cross-examination?
    
37. As for PW2, did she also simply mention chin and the ribs to match the injuries on the deceased’s ribs as she was very well aware of those injuries found on the deceased’s body when her statement as a witness was recorded? PW2 was initially a suspect and she admitted during cross-examination that when she was questioned by the police she told the police that no argument took place that day. PW2 also agreed that she changed her version when she gave the second statement to police where she said that there was a fight between her and the accused, and she agreed with the suggestion that she had given two different versions. PW2 also said that the police showed her PW1’s statement when she gave her second statement.
    
38. In the light of the forgoing inconsistencies and the circumstances, was the evidence of PW1 and PW2 on the alleged assault by the accused on the deceased credible and reliable? Is there a doubt that the said evidence may have been fabricated?
    
39. To recall the medical evidence regarding the alleged assault, according to PW4 the injury on the right lower jaw could not have been inflicted around 8.00pm on 04/03/19. There were no other injuries noted on the chin and no injury noted on the left jaw. Therefore, the medical evidence does not support the evidence of PW1 and PW2 regarding the alleged first punch of the accused. This inconsistency would support the preposition that the evidence of PW1 and PW2 is fabricated.
    
40. Regarding the second punch, PW4 clearly explained that the ribs were fractured on the right and left lateral aspects of the chest and on the back and there should have been at least three blows on the three areas. But both PW1 and PW2 mention only of a single punch. Therefore, the medical evidence on the alleged force used on the deceased’s ribs also does not reconcile with the evidence of PW1 and PW2.
    
41. At this point, I considered it appropriate to focus more on this evidence of PW1 and PW2 regarding the second punch. It is pertinent to note that PW1 and PW2 did not describe how exactly the force was inflicted on the deceased by the accused. Generally, to ‘punch’ means to strike with the fist. According to both witnesses, the accused and the deceased were standing when the accused punched the deceased. The question is, given the height of the accused and the height of the deceased who was about two and a half years old, how did the accused manage to ‘punch’ the deceased on her ribs (leaving aside the exact location of the ribs)? The evidence did not reveal that the accused bent down or changed his posture so that he could properly aim at the deceased’s left ribs. If the accused and the deceased were standing when the punch was delivered, then the direction of that punch should have been downwards. This would not have been like punching the ribs of someone who is a grownup, whose ribs would be easily reachable to be punched at.
    
42. The prosecution is required to prove the case beyond reasonable doubt. The evidence that fractures were noted on the deceased’s ribs on three locations and that the utterances by PW1 and PW2 respectively that the accused ‘punched the left ribs’ and that the accused ‘punched the ribs’ alone, in my view, are not sufficient to prove beyond reasonable doubt that the accused caused the death of the deceased in this case by punching the deceased.
    
43. This evidence of PW1 and PW2, even accepted as credible and reliable, does not even prove that the accused caused the fracture in any of the three locations of the deceased’s ribs that were later found to be fractured, beyond reasonable doubt.
    
44. Therefore, even if it is assumed that PW1 was referring to the deceased by the term ‘the little girl’, PW1’s evidence does not assist the prosecution to prove the first count beyond reasonable doubt.
45. There was another significant inconsistency noted between the medical evidence, that is the evidence of PW4, and the evidence given by PW2. According to PW4, there were no traces of chicken and rice in the deceased’s abdomen. On the contrary, what PW4 found was that there was a dull white, grainy, viscous fluid which was a thick fluid in the deceased’s stomach and in her opinion the deceased would have eaten something very soft or fluid. PW4 also said that the deceased could have had problems eating food like chicken and rice and that the deceased would have shown signs of immense pain given the extent of the injury on the jaw. As I have already pointed out, according to the medical evidence it could be deduced that this injury would have been inflicted before 2.00am on 04/03/19. So, the deceased would have been having eating problems at least from the morning on 04/03/19.
    
46. However, it was the evidence of PW2 that she fed chicken and rice to the deceased in the night on 04/03/19. She said that the deceased was normal when she fed her. There is absolutely no reason to doubt the evidence of PW4 on the nature of food that were found inside the deceased’s abdomen. The dead body cannot lie and PW4 has no reason to lie regarding her conclusion that there were no traces of chicken and rice inside the deceased’s abdomen and that it would have been difficult for the deceased to eat food like chicken and rice on that particular night. Therefore, it is clear that PW2 lied to the court about feeding the deceased chicken and rice on 04/03/19. The medical evidence suggests that she had in fact fed the deceased something very soft or fluid. So it is evident that PW2 had the knowledge about the eating difficulties the deceased was having as at 04/03/19. But PW2 did not say that the deceased was having eating problems that day. So the pertinent question is, why did PW2 lie to court on this matter? If she could lie on such an important matter, can her evidence against the accused be relied upon?
    
47. When I reflected on the question as to why did PW2 lie to the court, three factors came to my mind. First is, the evidence given by the accused about the alleged confession made by PW2 to him that PW2 assaulted the deceased with an iron rod during the day in question. However, I am also mindful of the fact that, according to the accused, PW2 had told the accused that she had hit the deceased on her legs. I also noted that according to PE 3, PW4 had noted ‘multiple dark ovoid marks noted over the skin of bilateral lower legs anteriorly and posteriorly, just above the ankle joint’. It is pertinent to note that an ovoid wound was noted over the right lateral aspect of the deceased’s chest.
    
48. Secondly, when PW2 was asked whether she is left handed or right handed, during cross-examination, she said she is left handed. It would be common sense that if a left handed person assaults another person under normal circumstances where it is expected to use the dominant hand and when the two of them are facing each other, the injuries on the other person would be expected on the right side of the body. The deceased had her right lower jaw fractured and a rib injury on the right side of her body that also injured her liver which is on the right side of the body which caused heavy bleeding into the abdomen.
    
49. Third factor was PW2’s evidence that when she went to see the deceased after the accused woke her up telling her that the deceased had passed away, PW2 emphasising on the fact that the deceased was on the settee facing down though the deceased was facing upwards when she left her in the sitting room before she went to sleep that night; and the observations of PW4 that there were multiple irregular laceration of varying sizes over the left inner lower lip where she also said that they were recent injuries. However, PW4 was not asked to explain how these injuries were caused. The question is, whether PW2 knew something more about the death of the deceased which she did not come out with in her evidence.
    
50. Nevertheless, the bottom line is that the main witness the prosecution relies on to prove the case against the accused has been found to have lied to court on oath.
    
51. All in all, I find the evidence given by PW1 and PW2 implicating the accused to be unreliable. I was guided to reach that conclusion given the inconsistencies between the evidence of those two witnesses and the medical evidence, the doubt created in my mind of possible fabrication given the fact that both witnesses appear to have been briefed by the police regarding the injuries sustained by the deceased when their police statements were recorded, and given the clear indication that PW2 had lied to court on oath. Moreover, I would anyway disregard the evidence of PW1 in relation to the first count owing to the fact that her evidence did not relate specifically to the deceased.
    
52. The prosecution has therefore failed to establish beyond reasonable doubt that the accused punched the deceased on 04/03/19 and thereby caused the death of the deceased.
    
53. In the circumstances, I find that the prosecution has failed to prove the first count against the accused. For the reason that I have concluded that the actus reus relevant to the offence of murder as alleged by the prosecution has not been proved, I find that the alternative offence of manslaughter in the manner the assessors were directed to consider in relation to the first count is also not established.
    
54. As already discussed, the medical evidence led in this case establishes that there were multiple injuries on the external body of the deceased and that there were multiple bone fractures. These fractures no doubt would have caused immense pain to the deceased. The deceased was unable to eat solid food due to the fracture in her jaw. PW4 said that the internal bleeding was mainly due to the injury to the liver and not seeking medical attention. Given these circumstances and also the timeline established through the medical evidence in this case, there is no way for the accused and also for PW2 for that matter, not to be aware of this condition of the deceased in the evening on 04/03/19 (at least by 8.00pm) and to realize that the deceased needed immediate medical attention; irrespective of the manner in which the deceased sustained those injuries and irrespective of whether the accused is responsible for those injuries or not. I am mindful of the evidence given by the accused regarding the conduct of the deceased on 04/03/19 and the evidence of the second defence witness. I am unable to accept the defence evidence which suggests that the deceased did not show any sign of severe pain or distress that night.
    
55. I am satisfied beyond reasonable doubt that the accused omitted to take necessary steps to provide medical attention to the deceased knowing very well that the deceased needed medical attention and given the circumstances known to him he was reckless as to the risk of causing serious harm to the deceased by the said conduct. I find that this omission to provide medical treatment to the deceased, substantially contributed to the death of the deceased.
    
56. Though PW2 was initially a co-accused in this case in relation to the first count, the prosecution decided to drop the charge against her and later on made her a prosecution witness. Therefore no adverse finding could be made against PW2 in this case.
    
57. Therefore, though I have found that the prosecution case theory had failed, the evidence led in this case establishes beyond reasonable doubt that the accused had committed the offence of manslaughter contrary to section 239 of the Crimes Act 2009. This is the same offence the assessors were directed to consider as an alternative offence to the first count.
    
58. In the light of the forgoing, I am unable to agree with the unanimous opinion of the assessors on the first count. I find the accused not guilty of the first count as charged. Nevertheless, I find the accused guilty of the lesser offence of manslaughter contrary to section 239 of the Crimes Act.
59. In relation to the second count, as I have concluded that the evidence of PW1 and PW2 are not credible and reliable in the discussion in relation to the first count, I find that the prosecution has failed to prove the second count beyond reasonable doubt.
    
60. Accordingly, I am unable to conform to the unanimous opinion of the assessors on the second count. I find the accused not guilty of the second count.
    
61. In the result;
    1. The accused is hereby acquitted of the first count, but convicted of the lesser offence of manslaughter contrary to section 239 of the Crimes Act; and
    2. The accused is hereby acquitted of the second count.
       

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused