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State v Kumar [2010] FJMC 113; Traffic Case 2232 of 2009 (18 August 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 2232/09

BETWEEN

THE STATE

AND

SIMON RITESH KUMAR

JUDGEMENT

1. The accused in this case is charged with one count of careless driving.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Careless driving; contrary to Section 99(1) of the Land Transport Act.

Particulars of offence

Simon Ritesh Kumar s/o Raj Gopal on the 30th day of September 2009 at Lautoka in the Western Division drove a motor vehicle registration no FB 957 on Yasawa Street without due care and attention.

3. The accused pleaded not guilty to the charge and the case was taken up for hearing on the 29th May 2010. The only witness who was called by the prosecution was the Police Officer who booked the accused and after the prosecution case was closed, the court decided that the prosecution made out a case for the accused to reply. The accused gave evidence and the case was fixed for judgement.
   
4. The prosecution witness, PC 3288 Ronal Chand said in evidence that when he was on duty on the 30th September 2009 he booked the accused for careless driving. He said that when he was on patrol on traffic bookings on Yasawa Street, the vehicle registration number FB 957 came overtaking two vehicles and suddenly made a U turn without any due care and attention. He said that an oncoming vehicle nearly collided with it. The witness said that when he tried to stop him the driver of the vehicle looked at him and went off.
   
5. The booking officer further said that he knew the owner of the vehicle and told the owner to call the driver. He said that later the vehicle was parked near one shop called Sky Lab and the accused was booked. The witness identified the accused as the driver of the vehicle registration number FB 957.
   
6. It should be noted that the identity of the accused is not disputed in this case and in any event the prosecution witness positively identified the accused. Therefore I am satisfied that the identity of the accused is established by the prosecution without any doubt.
   
7. The time and place of the alleged incident is also not disputed by the accused. The only contention of the accused was that he did not drive the vehicle in the manner alleged by the prosecution.
   
8. The accused said in evidence that he never overtook any vehicle. Further he denied making a U turn. His position was that he went towards the same direction he came from, after turning the vehicle by reversing in to a drive way.
   
9. While cross examining the Police witness, the accused ask the following questions;
   

Q: You said I nearly collided with a vehicle, do you know the driver of the vehicle?

A: No

Q: Do you know the registration number of the on coming vehicle?

A: No

Q: Then how could you say that I was going to nearly collide with the on coming vehicle if you did not even see the number?

A: I was looking at the offending vehicle. I did not notice the number of the oncoming vehicle.

Q: I did not make a U turn there, Do you have any other witnesses?

A: Only I was there.

10. It is understandable that there could not be other witnesses every time a person is booked for an offence. Yet I am not satisfied as to why the police officer could not at least note down the number of the vehicle which was going to be collided with the offending vehicle. The particular street is not a road where a vehicle could go at an excessive speed, not giving a chance for any one to notice a number. Apparently this has happened during the day time. Besides the prosecution witness said that after seeing all this drama he signalled the accused to stop his vehicle. A doubt is created as to why the witness could not notice the number of the other vehicle if it was nearly collided with the accused's vehicle.
    
11. The accused admitted while giving evidence that the police officer came to him later after his vehicle was parked. But he repeatedly denied the fact that he made a U turn. However it should be noted that the prosecution too has forgotten it's version when the accused was cross examined. Following are some excerpts of the cross examination of the accused by the prosecution;
    

Q: You said you reversed the vehicle?

A: Yes. That's near a carrier stand. I reversed the vehicle to a drive way on the left and went to the same direction I came from.

Q: There is an entrance and exit to the carrier stand. To which one did you reverse?

A: second one. That's the exit.

Q: Don't you think it's wrong to reverse in to the exit?

A: There were no vehicles at that time.

Q: If you reversed there was a risk of a collision with a bus coming from the bus stand?

A: The place where I reversed, the road was clear.

12. Therefore it is quite clear that there is an ambiguity as to what exactly the accused had done. According to the evidence led by the prosecution the accused is charged for careless driving for overtaking two vehicle s and making a sudden U turn. Yet the evidence given by the accused and the manner of cross examination of the accused by the prosecution creates a doubt as to whether the accused had done something without due care and attention.
    
13. The accused has consistently denied the allegations of overtaking and making a U turn. The duty of the prosecution is not to hang on to one act or the other of the accused which could constitute an offence. The duty of the prosecution is to prove the specific alleged act of the accused which constitutes the offence. Conducting a prosecution is not a chase of wild goose. The guilt of a person has to be proved beyond reasonable doubt with consistent and strong evidence. It appeared that the prosecution was trying to establish that the reversing of the vehicle amounts to an act done without due care and attention. But it should be noted that the prosecution has to be specific regarding the act they allege to be an offence. I am not satisfied that the prosecution was able to discharge its burden of proof. In a case of this nature the prosecution has to prove the guilt of the accused beyond reasonable doubt.
    
14. A doubt is created in this case as to whether the accused did in fact drive the vehicle in a careless manner without due care and attention. In the circumstances I acquit the accused.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate

Lautoka.
18.08.2010