IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.261/2009

STATE

VS

NARAYAN SAMI PILLAY

Sergeant Volavola for the state 

The accused present and appeared in person

Judgement

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

CHARGE:

Statement of Offence [a]

[2] INDECENTLY ANNOYING MODESTY OF FEMALES – Contrary to Section 154 (4) of the Penal Code Act 17.

Particulars of Offence [b]

[3] NARAYAN SAMI PILLAYs/o APPAL SAMI on the 11th day of February, 2009, at Nasinu in the Central Division, with intent to insult the modesty of SAROJANI PILLAY d/o GOPAL PILLAY, uttered indecent, which is likely to offend her modesty.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 17th June 2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Sandhya Latchmi Pillay; in her evidence, she said that she is married to Shiva Nadan Pillay. She is still living with his husband. The Accused is her father in law. They lived in same compound at the time of the incident, in Nakasi. On 11-01-2009 at about 10.00am she was at home. Her sister supposed to visit her. She said when she arrived the accused started swearing at her and her. She said that she saw that the accused swearing at them. The accused said "Maichod (MotherFucker) and chor (Thief). He used hard language. The witness also said that he said that we do black Magic (witch craft) on them. She said her husband was in the house. Then they reported matter to the police. 

[6] There was no cross examination. The court questioned the witness, is there any reason for swearing. The witness said even small family matter the accused used to swear at them. 

[7] In re examination witness said when his de facto wife came and took him inside. He said her husband was very angry and had to hold him to prevent them being fight. 

[8] Interview notes and Charge Statement were tendered by consent of the accused as Ex- and Ex-2. 

 [9] 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 evidence, on oaths. 

[10] DW1- The accused: Narayan Sami: The accused said that he did not say any word to the complainants. He further said he had no reason to swear them. He said that complainant came from Labasa and that was the first time he saw her. There was no reason him to swear at her. The accused said one Shiva Nandan supposed to pay $100 per month as agreed but he did not pay single cent. The accused hid the relationship of this Shiva Nandan he is actually the accused's son the PW1's husband. 

[11] In cross examination; the witness said he lives with youngest son Paramasivam Pillay and daughter Kamini Kalpana Pillay. Shiva Nandan pillay is married to the complainant. Before the marriage they lived together. The accused was in one side and complainants were in the other side. They have moved away now. The Prosecution suggested that because of the accused constant swearing and threatening the complainants moved away. But the accused said that that is not true. The witness further said that his son, Shiva Nandan wanted his own taxi so he transferred his Taxi to him. 

[12] The accused answering to the court said that he is 69 years old now. He said he purchased the Taxi withdrawing his FNPF money. He said he spent $24,000 on it. He said that elder son; Shiva Nandan said that he will look after the welfare of the family. So he transferred the Taxi on his name, but nothing paid to him by the elder son. He accused marked the agreement as D EX-1. He said that he did not file any court case but he trusted the elder son.

 [13] Then the accused closed his case.

The Law

[14] INDECENTLY ANNOYING MODESTY OF FEMALES – Contrary to Section 154 (4) of the Penal Code Act 17.

"Whoever, intending to insult the modesty of any woman or girl, 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 such woman or girl, or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty, is guilty of a misdemeanour, and is liable to 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 reasonable doubt. This 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 doubt about the guilt of the accused."

[18] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1970 AC 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 did not say that she was annoyed by the accused words ""Maichod (MotherFucker) and chor (Thief). But she said that she heard swearing. For the prosecution only Sandhya Latchmi Pillay gave evidence. The accused denied the incident. According to the D EX-1, the PW1's husband supposed to give $100 per month starting from August 2005. The accused said so far nothing paid to him. This court has no power to act and recover said sum and that is different cause of action for civil court to the accused as it accumulating the monthly sum, but this indicates that there was tension between the parties. I draw my attention to the accused's statement. To the question number 11, the accused answered that the accused noticed that PW 1 threw dog's shits where their clothes were hanging. Then the accused told his son about that but he remained silence and did not take any action. Thereafter nothing happened. Adduced evidence are against each other. 

[21] In this case the accused was charged with intent to insult the modesty of SAROJANI PILLAY, uttered indecent, which is likely to offend SAROJANI PILLAY's modesty. This SAROJANI PILLAY never called as a witness. She did not come and say that by such words her modesty was offended by the accused. Instead the Prosecution called Sandhya Latchmi Pillay. But there is no charge that her modesty was offended. Therefore it is clear that the evidence has not led according to the charge. 

[22] I hold the prosecution has not discharged its burden. 

[23] I therefore acquit the accused.

[24] 28 days to appeal

On 01st of August 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate