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State v Ali [2011] FJMC 150; Criminal Case 510.2010 (14 November 2011)

IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.510/2010

STATE

VS

FAROOK ALI

Sergeant Volavola for the state
The accused present and appeared in person

Judgment

[1] The accused is charged with the offence of Indecently Annoying Modesty of Female. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

[2] INDECENTLY INSULTING OR ANNOYING A FEMALE: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

[3] FAROUK ALI, on the 29th day of April, 2010 at Nasinu in the Central Division with intent to insult the modesty of ANA WATI uttered words "fuck You, Magai Tinamu which in English means fuck your mother", intending that such words be heard by the said ANA WATI.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 15-07-2011 and 21-09-2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Ana Wati; on her evidence, she said that she is staying at Makoi Road. Before that she stayed in Nadawa. The owner of that place is Farouk Ali, the accused. They paid rent and they stayed just in a single room. The witness said she cannot recall the date, but the accused swore at her in a particular day. She then reported matter to the police. When first time swore, she was at her brother in law's place and very next date also the accused swore at her. In other time the accused swore at her in front of a police officer. She said first time the accused swore at her by phone. She then reported matter to the police. She said she confirmed the police statement. The accused uttered "Bitch-Bajaru, you people don't have any house".

[6] At this moment the prosecution named this witness as an "adverse/ hostile witness". The court allowed the application.

[7] The witness was cross examined and she said both (Police statement) and evidence are correct. Later she reverted that the statement in court is correct. She said she reported twice, but the accused suggested he got only one police statement that was on 29-04-2010. The witness said when the accused called her; he was in the room nearby. Then accused asked what is the reason for calling, because he could have scolded her face to face.

[8] After that prosecution closed their case. Since there was a case to answer the accused was explained and given his rights to call the defence. Then the accused opted to give sworn evidence, and he called another witness. .

[9] DW1- Farook Ali: The complaint, Ana Wati was renting his house and he sent notice vacate the house. The accused said they were arrears in rent. The victim's husband was a mechanic and they were disturbing neighbouring people so Nasinu Town counsel officers warned the accused to stop making noise. He said just because of this notice to vacate they offend him by putting this false complaint. The Accused said he did not swear the complainant. The accused denied the allegation.

[10] In cross examination; the witness said they did not pay more than 3 months. He admitted in his statement, he has said that he was drunk at the time of incident. He further admitted as he was drunk he did not remember the phone number so he did not use the phone to call the victim.

[11] Then Defence called DW 2- Zarina Khatoon: She said she was there and the accused did not swear the complainant. She further said he was in grog dope and went to sleep around 7.30pm. Because that her husband ordered to stop the illegal garage, they have made false report; She said.

[12] In cross examination the witness said that her husband went to sleep early. He did not use mobile phone and he did not swear the victim.

[13] Then the accused closed his case.

The Law

[14] INDECENTLY ANNOYING MODESTY OF FEMALES – Contrary to Section 213 (1) of the Crimes decree 2009.

"213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year."

[15] Elements of the charge of INDECENTLY ANNOYING MODESTY OF FEMALES are (1) intending to insult the modesty of any woman or girl (2) utters any word, makes any sound or gesture, or exhibits any object (3) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl, (4) intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty.

Burden of proof

[16] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[17] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond rease doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable do160;about the the guilt of the accused."

[18] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1C 618) reported in 72 New Law Reports 313 (Sri Lanka),

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[19] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[20] In line with the above guiding principles, now I evaluate the evidence adduced before me. PW1 said she was annoyed by the accused swore at her by phone. But she did not say what was exact word that she heard. Then, the prosecution made her as adverse/hostile witness. Under cross examination the prosecution tried to element of charges.

[21] In early years, "Hostile Witness" is defined in case laws. In Coles v. Coles (1866) L.R. 1 P. & D. 70, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court.

[22] In Sat Paul vs. Delhi Administration [1975] INSC 231; AIR 1976 SC 294, the Supreme Court of India defined a Hostile Witness as "one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact, who fails to prove such a fact or proves an opposite fact".

[23] At Common Law, testimony of hostile witness was to be rejected completely because request for leave to cross-examine such witness by party calling him was to discredit him by proving that he was unreliable.

[24] In R v Golder [1960] 3 All E R 457, It was held, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character.

[25] But this rule was relaxed recently in common law countries. In State of U. P. v. Ramesh Prasad Misra and Anr (AIR 1996 SC 2766) wherein Court stated, "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."

[26] In Bhagwan Singh v. State of Haryana [1975] INSC 307; [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence.

[27] In Rabindra Kumar Dey v. State of Orissa [1976] INSC 205; [AIR 1977 SC 170] it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration.

[28] In Balu Sonba Shinde v State of (AIR 2002 SC 3137) and case of Karruppanna Thevar and Ors. v. The State of Tamil Nadu (AIR1976 SC 980), the Supreme Court of India has again held as under "A hostile witness may not be rejected outright but the Court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence.

[29] To reach a conclusion, above common law cases are persuasive to me. The prosecution called only one witness. That is the victim. But she did not reveal the truth. There is no corroboration for her evidence on the other hand the accused sworn evidence and his version was corroborated by the defence evidence. As I noted in my judgment, the accused has no burden to prove his innocence. The prosecution is to prove its charges beyond reasonable doubt. In this case the prosecution failed to do this.

[30] I hold the prosecution has not discharged its burden of proof beyond reasonable doubt against the accused.

[30] For aforesaid reasons, the Accused is acquitted ad discharged.

[31] 28 days to appeal

On 14th November 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate