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State v Goundar [2012] FJMC 102; Criminal Case 471.2009 (24 May 2012)

IN THE MAGITRATES COURT OF FIJI AT NADI
CRIMINAL JURISDICTION

Criminal Case No. 471/09

THE STATE

V

SARWAN GOUNDAR

Sgt Naidu for prosecution
Mr. Baledrokadroka
Date of Judgment: 24. 05. 2012

JUDGMENT

BACKGROUND

1. On 8 June 2009 the accused was formally charged with:
   
   1. count one: criminal trespass contrary to section 197 (2) of the Penal Code; and
      
   2. count two: common assault contrary to section 244 of the Penal Code.
      
2. The count on criminal trespass arose out of the complaint that on the night of 28 February 2009 the accused entered into the compound of Muttu Sami Goundar at Waimalika without lawful excuse. The count on common assault arose out of the complaint that the accused unlawfully assaulted the complainant that night, approximately 8.30 pm.
   
3. Both counts proceeded to trial as the accused pleaded not guilty to the charges.
   

EVIDENCE OF PROSECUTION

4. Prosecution produced three witnesses namely Muttu Sami Goundar (PW1) and Koki Lamma (PW2) and PC Avinesh Kumar (PW3) and the prosecution also exhibited a damaged eye glasses, record of caution interview and charge statement as Ex-1, 2 and 3 respectively.
   
5. Evidence of PW1-a summary of the evidence of PW1 is as follows:-
   
   1. He resides at Waimalika since birth. He has his own house in his brother's property.
      
   2. His compound is not fenced.
      
   100. At around 8.30 pm on 28 February 2009 he returned from his brother's place. Then he saw Sarwan, the accused on his compound without a shirt. The accused was drunk.
        
   4. Sarwan is his brother's son.
      
   5. He asked Sarwan what he was doing. As soon as he asked, Sarwan punched him on the head, eyes and his eye glasses were damaged.
      
   6. Only Sarwan was there. He identified Sarwan in the school lights. The school is very near to his compound.
      
   7. He identified his broken eye glasses.
      
   8. When Sarwan assaulted he felt dizzy. He sat down. He could not see after that.
      
6. Under cross examination PW1 stated that his compound is not fenced but there is a road beside the compound that nobody enters the compound. The accused was already in his compound. He confirmed that he saw the accused on his compound at around 8.30 that night. School lights were falling into his compound. He told that he identified Sarwan because he is his brother's son. He identified his damaged eye glasses. He admitted that he had few glasses of grog before the incident at his son's place. He denied the suggestion that he is lying in court.
   
7. In Re-examination he told that he was wearing his eye glasses at that time and he identified the accused in the lights.
   
8. Evidence of PW2-a summary of the evidence of PW2 is as follows:
   
   1. PW1 is her husband.
      
   2. At approximately 6.00 pm on 28 February 2009 she was at home. Her husband went to their son's place. She was making rotti.
      
   100. At around 8.00 pm Sarwan came calling "uncle... uncle..." when she came out she saw him carrying a small knife. She asked Sarwan what's he is doing there. He then left. At that time her husband was still away.
        
   4. After that her husband came. He called her from outside and told her that Sarwan assaulted him and his eye glasses broken. She then came out and saw Sarwan at their compound wearing shorts. She smelt liquor from his breath. Her husband showed the eye glasses which was broken.
      
   5. It was at night but school bigger tube lights were on.
      
9. Under cross examination PW2 stated that the school is about 3 – 4 metres away from theirs. The incident happened at night. Her husband told her that Sarwan assaulted and eye glasses broken. She did not see the assaulting.
   
10. Evidence of PW3- a summary of the evidence of PW3 is as follows:
    
    1. He recorded the caution interview of the accused. He also charged the accused. The record of caution interview and charge statement wherein the accused denied the charges were tendered without objection by the defence and marked and exhibited as Ex-2 and 3 respectively.
       

EVIDENCE OF THE DEFENCE

11. At the close of the prosecution case, the defence made submission on no case to answer. Nonetheless, I found a case to answer and put the options available to accused. He then chose to remain silent. He also told that he is not going to call any witnesses to give evidence on his behalf.
    

THE LAW

12. In so far as it applies, section 197 (2) of the Penal Code states:
    

"(2) Any person who enters by night any dwelling-house, or any verandah or passage attached thereto, or any yard, garden or other land adjacent to or within the cartilage of such dwelling-house, without lawful excuse, is guilty of a misdemeanour, and is liable to imprisonment for one year".

13. The prosecution must prove the following elements:
    
    1. The accused;
    2. Entered by night without lawful excuse;
    100. The dwelling house of the complainant (PW1).
         
14. As far as section 244 of the Penal Code, it states:
    

"244-Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, is liable to imprisonment for one year.

15. For the offence of common assault the prosecution must prove beyond reasonable doubt the following elements:
    
    1. The accused;
    2. Unlawfully assaulted the complainant.
       

ANALYSIS OF EVIDENCE

16. Since the accused has pleaded not guilty to the charges it is the duty of the prosecution to prove each of the elements of the charges beyond reasonable doubt.
    
17. The accused is charged with one count of criminal trespass and one count of common assault.
    
18. As stated above, PW1 stated in evidence that he saw the accused at his compound that night and when he (PW1) asked what's he doing there, he then punched him on head, eyes and broke his eye glasses [Ex1].
    
19. PW1 explained to court how he identified the accused. He said that there were school lights falling into his compound, for he identified the accused clearly by recognition. The accused is his nephew. After the punch he felt dizzy and sat down. He called out his wife and told her what had happened.
    
20. Under cross examination PW1 confirmed that he identified the accused in the school light that night. He also said that the school is very close to his compound.
    
21. PW2 in evidence stated that she saw the accused that night just before the assaulting incident. When she asked what he is doing there he left. She told that she identified the accused in the school lights. After sometime her husband called her out and told "Sarwan assaulted him and his eye glasses broken".
    
22. Under cross examination she told that just before the assaulting incident she saw the accused at their compound that night. She confirmed that after that her husband, PW1 called her out and told that Sarwan assaulted and his eye glasses broken.
    
23. Both PW1 and PW2 stated that they saw the accused that night, by 8.30 pm at their compound and they indentified the accused by recognition.
    
24. PW1 told that the accused punched him that night on the head, eyes and the eye glasses broke. He called out PW2 immediately after assaulting and told Sarwan assaulted and his eye glasses broke. It is to be noted that the accused has been identified by name.
    
25. Though PW1 was examined by a doctor. The prosecution could not produce any medical report. The charge on the second count is one of common assault. The offence of common assault may be proved even without medical examination report, for the prosecution need not prove any injury to establish an offence of common assault. What the prosecution need to prove for a common assault that the accused assaulted the victim.
    
26. In the caution interview and the charge statement the accused had denied the both allegations. He did not make any statements regarding the allegations. At trial the accused had chosen to remain silent. He has just exercised his common law right to remain silent. The court cannot draw any adverse inference for that.
    
27. PW1 gave forthright evidence in court. PW2 confirmed what PW1 told in evidence. Their evidence was not shaken in cross examination. Prosecution witnesses were consistence in their evidence.
    
28. PW1 and PW2 clearly identified the accused by name in the school lights that night. The accused had trespassed into the compound of the complainant without any excuse and he assaulted and broke PW1's eye glasses.
    
29. The prosecution witnesses gave plausible evidence hence I accept their evidence.
    
30. The prosecution was successful in proving each element of the both charges beyond reasonable doubt.
    
31. I therefore find the accused guilty on both charges, criminal trespass and common assault and convict him accordingly.
    

M H Mohamed Ajmeer
Resident Magistrate

At Nadi
24 May 2012