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State v Kumar [2005] FJMC 9; Criminal Case No 1470 of 2004 (30 March 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1470 of 2004

STATE

V

DALIP KUMAR s/o Deo Narayan

Prosecution: Inspector Permal
Defence: Mr D Sharma / Ms Fatiaki

JUDGMENT

The accused has been charged under S245 of the Penal Code for Assault Occasioning Actual Bodily Harm. He has denied the charge.

The prosecution facts allege both the accused and the complainant are taxi drivers. They have private passengers at the united taxi base between 6 to 8 am each morning. The complainant was called by a customer on 4/3/04 but the accused had gone there. On 5/3/04 the accused asked the complainant to remove his taxi so the one behind him can move away. The complainant while moving his vehicle bumped the accused’s leg. The accused went to the complainant and assaulted him.

He pressed his neck causing the complainant to vomit. He pulled him out of the car and punched, kicked the complainant and poked his eyes.

The complainant saw another driver (DW2) walking towards them but couldn’t see any more due to the poked eyes. He was taken to hospital after police came. He has a medical report showing painful right eyes, neck, back, upper back – right side and right 5th finger. He has soft tissue injury as diagnosed by the doctor. No other witnesses was called on his behalf.

In defence the accused denied assaulting him. He said he fell when bumped by complainant on his leg. He got up to enquire why he was bumped. The complainant said he was sorry and the accused moved away from him. He says the complainant came out and hit him with a screw driver. He said it pierced his lips and came out on cheek side.

He tried to stab him more but others present held him back. He was seen by a doctor also. His report says laceration over mid lip extending to inner lip and gum. Diagnosis is soft tissue injury consistent with physical assault.

He called one witness – Sanjeev Kumar. He saw complainant bump the accused on his left leg. He saw and heard accused go to the complainant to ask him ‘why he was bumped’ whilst complainant was on drivers seat. This witness then left to attend to his taxi and saw nothing thereafter. When he later came he saw accused holding complainant from the back. Complainant had a screw driver in his hand. Police was called on instructions of this witness. He didn’t see complainant being assaulted by the accused.

I have considered whole of the evidence and seen the witnesses in the box. The defence witness was a relative and friend of the accused. He gave a very clear account of what the complainant did.

However, he didn’t see anything done by the accused.

Anyone in his position would be curious to know why the accused was bumped and why the victim went towards the complainant, yet he chose to move away from there and not to see the ensuing incident. I find his evidence of little weight.

I find the accused was annoyed at being bumped. He approached the complainant and punched his right upper back, neck and back. He was pulled off the car and assaulted further as described by the complainant. This is confirmed by the soft tissue injury to neck, back and right side of upper back and eye.

As for what the complainant may have done thereafter, I make no finding of facts since its subject of another case pending against the complainant arising out of the same incident. This was brought out in evidence during cross-examination. But whatever the complainant may or may not have done does not entitle the accused to assault him the way he did.

It is a clear inference from evidence that the accused did retaliate after being bumped by complainant’s car. There also appears to be business rivalry between the two for poaching each others passengers from the base. The medical report corroborates the complainant’s story and I accept it as true.

In a case of this nature which happens in a public place with lots of people present should be an easy task for the prosecution to call independent witness. The police here could have been more diligent.

I find the prosecution has proved its case beyond reasonable doubt.

The accused is found guilty as charged.

Dated this 30th day of March 2005.

Ajmal G. Khan
RESIDENT MAGISTRATE