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State v Pillay [2008] FJMC 7; Criminal Case No 738 of 2006 (3 July 2008)

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

CRIMINAL CASE NO.: 738 OF 2006

STATE

V

VISHAL ANAND PILLAY s/o Vishwa Nadan Pillay

For the Prosecution: Cpl. Mohammed Shamim & Sgt. Shaukat Ali
Accused: In Person

Date of Hearing: 03rd July, 2008
Date of Judgment: 03rd July, 2008

JUDGMENT

[1] The accused is charged with the offence of robbery with violence. The charge reads as follows:

STATEMENT OF OFFENCE

ROBBERY WITH VIOLENCE: Contrary to Section 293 (1) (b) of the Penal Code Cap 17.

PARTICULARS OF OFFENCE

VISHAL ANAND PILLAY s/o Vishwa Nadan Pillay with another on 09th day of November, 2006 at Lautoka in the Western Division robbed Akhil Raju s/o Pahalad of cash $4.00 and a taxi meter valued $300.00 both to a total value of $304.00 and immediately before such robbery did use personal violence to the said Akhil Raju s/o Pahalad.

BACKGROUND

[2] The complainant Akhil Raju (PW1) is a Panel Beater and he is employed by Public Works Department and he drives a taxi on a part-time basis. On 09/11/06 he was driving his father in law’s taxi registration number LT 5251 and he picked up two passengers at Vitogo Parade. The passengers were of Indo-Fijian and he was asked by them to drive them to Viseisei Back Road and then to Nadi Town. PW1 did not know any of the passengers by name and there is no evidence that he had seen either of them prior to the date of this incident. He said that when the passengers got into the car, the streetlights were on and he had a good look at them.

[3] PW1 stated that the accused was seated behind him in the back seat and the other person sat on the left hand side at the rear. The other person was short and fat. After picking these passengers PW1 drove to Saweni Service Station to fill some fuel and he asked the accused for the fare. The accused said that they would have to go to his aunty’s house at Viseisei Back Road to fetch some money. He said that he did not fill any fuel and drove to Viseisei Back Road when all of a sudden he was hit on his head with a beer bottle by the accused. He said as a result the beer bottle broke and a piece struck the windscreen and it got shattered and he was unable to see anything and his taxi ended up in a drain. He stated that he jumped out of the taxi and ran to the other side of the road into the bush.

[4] He said that he saw the accused got into the driver’s seat and tried to reverse the car but was unable to do so and then switched off the ignition and they both walked away into the bush. He said that he came out of the bush and saw that the lights were on and the keys in the ignition was missing together with about $4.00 coin which was left in the astray and the taxi meter which was worth $300.00.

[5] He said that prior to being hit the accused and the other person were with him for about half an hour and that he spoke to both of them.

[6] He said that he stopped a carrier and used the carrier driver’s mobile phone to call the police and the police came to the scene. Police Constable Simione Tuibua was the investigating officer and he said that the accused had come to the police station and he and PC Kaliova drove to the scene of the incident in PW1’s taxi.

[7] Later PW1 was sent to the hospital for medical examination and he was medically examined by a doctor and he obtained a medical report. The prosecution did not tender the medical report as it had not complied with the Section 191 of the Criminal Procedure Code.

[8] The investigating officer Constable Simione was unable to find any broken beer bottle in the car and he also stated that the car was not fingure-printed.

[9] On 13/12/06 PW1 saw the accused at Village 4 Cinema and subsequently the accused was arrested by the police. There are different versions given by PW1 and PW2 as to how the accused was arrested. PW1 said that he saw the accused and called the police and pointed out the accused to them who later arrested him. In cross-examination he said he agreed that the accused was held by one of his friends’ who was big built. PW2 said that the accused came to the police station and took him to Village 4 where he pointed him to the accused.

[10] The accused was interviewed by PW3 (PC Allan Nair) and he denied the allegation. He at the very outset stated that on 09/11/06 at 7.30 p.m he was at home and as such he had raised the defence of alibi and there was an onus on the police to verify his alibi. PW3 said that he did not check the alibi himself and asked PW2 to do so. There is no evidence that PW2 checked on the accused’s alibi.

IDENTIFICATION OF THE ACCUSED

[11] This case is purely based on the identification of the accused by PW1 and the principles for identification is set out in the case of R –v- Turnbull & Others 1976 3 All E.R 549 and I have to address myself of the following matters:

a. The accused has alleged that PW1 was mistaken and therefore I shall address myself of the special need for caution;

b. I shall direct myself to examine closely the circumstances in which the accused was identified, how long did the identification take, at what distance and in what light and also as to how long elapsed between the original observation and subsequent identification and also as to whether there was any material discrepancy between the description of the accused given to the police by PW1 when he first saw him and his actual appearance.

[12] PW1 in his re-examination said that when he saw the accused at Village 4 Cinema it took him 15 minutes to recognize him. The prosecution has not placed any evidence before me as to the description given by PW1 of the accused when he first saw the police. If PW1 had seen the accused so clearly then why did it take him 15 minutes to recognize him. There is no evidence that PW1 and the accused were known to each other.

[13] The identification in my view is not conclusive and further the prosecution could have checked his alibi and they failed to do so and the prosecution also failed to do fingure-printing of the taxi. In all the circumstances the prosecution has failed to prove the onus cast on them which is beyond all reasonable doubt and there are serious doubts in this case and I resolve the doubts in favour of the accused and I acquit the accused of the charge.

[Mohammed S. Khan]
Resident Magistrate

03rd July, 2008