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State v Ali [2008] FJMC 18; Criminal Case No 626 of 2006 (21 November 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 626 OF 2006

STATE

V

AINAL RIZWAN ALI s/o Usman Ali

For the Prosecution: Cpl. R. Choy
For the Accused: Mr. H. A Shah

Date of Hearing: 22/10/08; 17/11/08
Date of Judgment: 21/11/08

JUDGMENT

[1] The accused is charged with the offence of assault occasioning actual bodily harm. The charge reads as follows:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 245 of Penal Code, Cap 17.

Particulars of Offence

Ainal Rizwan Ali s/o Usman Ali on the 25th day of June, 2005 at Lautoka in the Western Division assaulted Gulsan Banu f/n Fakir Mohammed thereby occasioning her actual bodily harm.

BACKGROUND

[2] The accused is 23 years old. He is a carrier driver and he lives at Novoka Settlement in Lovu with his parents. On 26/06/05 the complainant was also living at Novoka Settlement. She is 60 years old now and was a neighbour of the accused’s family. On 25/06/05 the accused had some arguments with his parents and the complainant was starring at the accused and subsequently the complainant is alleged to have sworn at the accused. The accused’s mother intervened and asked the complainant not to use such vulgar language and this exchange developed into a fight and as a result both the complainant and the accused’s mother (Hassan Bibi) got hurt. Hassan Bibi is 55 years old now. As a result of this incident the accused was charged and the complainant has also been charged for assaulting the accused’s mother and her case is presently pending in Court.

[3] After this incident the accused brought his mother to the police station and the complainant also came to the police station with her son. The accused arrived at the police station before the complainant. Hassan Bibi was given a medical report form at 9.50 a.m and in that report she stated that she was hit with a piece of timber. The complainant was also given a medical report form at 11.45 a.m and in that she stated that she "was assaulted by one Hassan Bibi."

[4] Hassan Bibi and the complainant were examined by the same doctor at Lautoka Hospital. The complainant was examined at 12.00 noon and Hassan Bibi was examined at 12.50 p.m and incidentally both of them told the doctor that they were assaulted by their neighbour.

[5] The accused was interviewed by Police Constable Sunil Kumar on 26/06/05 and in the caution interview it was suggested to him that he together with his mother at about 9.00 a.m on 25/06/05 assaulted Gulsan Bano at Holland Street, Novoka and occasioned her actual bodily harm. The accused denied assaulting Gulsan Bano and he stated that she was assaulted by his mother. He further stated that Gulsan Bano hit his mother with a piece of timber and thereafter his mother punched Gulsan Bano several times and he only intervened to separate them and he only admitted to pushing her in the process.

[6] Gulsan Bano was quite emphatic in her evidence that she was assaulted only by the accused and not his mother. She said that his mother did not assault her at all. She was unable to say as to how the accused’s mother received the injuries. Her evidence was supported by her daughter-in-law Rehana Mehnaz Begum and she also stated that the accused assaulted her mother-in-law and she also denied that Hassan Bibi assaulted her.

[7] The defence case is that Gulsan Bano was assaulted by Hassan Bibi after she was hit on her face with a timber. The accused in his evidence said that he did not throw any punches at Gulsan Bano. He said all the punches were thrown at her by his mother who only retaliated after she was hit with a piece of timber and she received injuries to her left eye. He stated that he was trying to separate his mother and Gulsan Bano from fighting and receiving further injuries and he admitted that in the process of doing so he may have pushed Gulsan however, Gulsan Bano in her evidence did not state that the accused ever pushed her.

TENDERING OF MEDICAL REPORT

[8] The prosecution tendered Gulsan Bano’s medical report under the provisions of Section 191 of the Criminal Procedure Code without any objections from the defence. The medical report was marked as exhibit P1 and the front page of the medical report which was filled by Constable Manasa states that Gulsan Bano was assaulted by one Hassan Bibi. When this was pointed out to Gulsan Bano in her cross-examination she said and I quote her:

"My medical report was filled on 25/06/05 I am illiterate – but if you say that it states Hassan Bibi assaulted me then that must be true. I do not know her by name. I use to call her sister. I agree that the information on the medical report was given by me."

RECORD OF INTERVIEW OF THE ACCUSED

[9] In the allegation of the record of interview Constable Sunil Kumar stated that the accused together with his mother assaulted Gulsan Bano. This allegation would have only put to the accused on information and material provided to Constable Kumar either by Gulsan Bano or her daughter-in-law Rehana Mehnaz Begum as there were no other witnesses to this incident. This allegation is in direct conflict and contradiction with the evidence of both Gulsan Bano and Rehana but is in support of the information contained in the medical report wherein it is stated that Gulsan Bano was assaulted by Hassan Bibi.

[10] This is the case which purely turns on credibility. As between the evidence of the complainant and the accused I accept the evidence of the accused and his witness and reject the evidence of the complainant and her daughter-in-law. I do so because their evidence is in direct conflict and contradiction with the documentary evidence namely the medical report and the record of interview. I therefore find that all the injuries that Gulsan Bano sustained were caused by Hassan Bibi and the closest that the accused got to assaulting her was pushing her back but that has to be viewed and considered in light of the entire case and not to be considered in isolation. The accused was trying to separate Gulsan Bano and his mother and both had received serious facial injuries and in his attempt to separate them if he pushed Gulsan Bano away and she fell that in my view cannot be considered to be an assault. He only used reasonable force under the circumstances to try and restrained his mother and Gulsan Bano from inflicting further injuries on each other.

CONCLUSION

[11] In the circumstances I find that the prosecution has failed to prove its case against the accused and I acquit the accused for the charge of assault occasioning actual bodily harm.

[Mohammed Shafiullah Khan]
Resident Magistrate

21st November, 2008