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State v Singh [2012] FJMC 217; Criminal Case 13 of 2011 (13 September 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO.13/2011

STATE

vs

JASBINDAR SINGH

Sgt Naidu for the prosecution
Mr. Singh A for the accused.

RULING

The Application

[1] This is an application by the defence counsel under Section 178 of the Crimes Decree No.44 of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer and as a result the accused should be acquitted.

The Governing Section

[2] Section 178 of the Crimes Decree No.44 of 2009 states that:-

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused"

The Charge

[3] The accused is charged as follows:-

CHARGE

Statement of Offence-First Count (a)

INDECENTLY ANNOYING ANY PERSON: - Contrary to section 213 (1) (a) of the Crimes Decree No.44 of 2009.

Particulars of Offence (b)

JASBINDAR SINGH, on the 09th day of December 2011 at Nadi in the Western Division with intent to insult the modesty of HEMA RAM uttered the words "having sex with Hema Ram and having affairs" intending that such words be heard by the said Hema Ram.

The Charging Section

[4] Section 213 (1) (a) of the Crimes Decree States as follows:-

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.

The Ground

[5] It was submitted by the defence counsel that there was no case to answer on the following grounds:-

(1) That there was no evidence to support the elements of the offence namely there is no evidence before court that the complainant heard those words alleged to have been uttered by the accused.

(2) That no evidence in court to establish that the accused uttered those words.

[6] In response to the submission made by the defence counsel, the prosecution orally submitted that:

(1) We have adduced sufficient evidence to establish all the elements of the charge and there is a case to answer. The words were heard by PW2, the complainant's husband.

The Test

[7] The court is called for making a determination of whether or not a prima facie case has been made out at this stage. I think I must be guided by the well settled principles of no case to answer from the following authorities:-

(i) R V Jai Chand 18 FLR 101 at page 103;
(ii) Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996]; and
(iii) Practice Note [1962] All ER 448.

[8] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states that;-

"...the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

[9] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

"LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:

(a) when there has been no evidence to prove an essential element in the alleged offence;

(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal [ if compelled to do so ] would at that stage convict or acquit but on whether on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer'.

[10] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

The Elements of the Offence

[11] To establish a charge of indecently annoying any person contrary section 213 (1) (a) of the Crimes Decree it must be proved:-

(a) That the accused, Jasbindar Singh.

(b) That with Intent to insult the modesty of Hema Ram, the complainant.

(c) That uttered the words "having sex with Hema Ram and having affairs"

(d) That such words were heard by the said Hema Ram.

The evidence

[12] At trial prosecution produced 02 witnesses. The submissions of no case to answer would be determined on the evidence so far laid before the court. I would therefore state what each witness has testified.

[13] The 1st witness was Hema Shalini Sanita Ram (PW1). She testified Examination in Chief that whenever he (accused) passes by he makes remarks, asking to visit and to make tea for him while she is in the garden. He (accused) told my husband I have affairs with him. I felt very annoyed and disrespected when my husband told this to me. He spread out allegation which is not true. I know him. He is my land owner's sister's son.

[14] Under Cross examination she refused to answer the question that her current husband is her ex-husband's brother. She admitted that she easily gets irritated. She denied the suggestion that she made a false complaint. She also told that her husband was in Ba at the time of incident.

[15] The second witness for the prosecution was Jinesh Chandra Prasad (PW2) He in examination in chief stated that: He was in Ba on Friday, 9 December 2011. He called his wife (PW1) around 8.45 or 9.00 pm and she told him there was a number buzzed. He dialled that number. He heard a male voice. He (the male voice) told him he is her husband. He (the caller) told him 'I have affairs with her. She will now call me and I will go and meet her' When the witness asked about the son, he (the caller) told the son is fast asleep. The caller also told him the he uses condom. The accused admitted this in good faith. I was very compromising.

[16] Under Cross Examination PW2 admitted that PW1 is his cousin's former wife. He did not know the exact date when this incident happened. He admitted that he said he is the boyfriend of that lady (PW1) to the caller. He admitted differences in his statements to police. When asked about his police statement he unclaimed.

[17] PW3 tendered caution interview of the accused marked as EXH 1. The Accused had denied the allegation during the caution interview.

The Determination

[18] It is for the court to determine whether there is sufficient evidence in respect of each one element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proved beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence, then the charge should be dismissed and the accused acquitted under section 178 of the Crimes Decree No.44 of 2009.

[19] Now I must analyse whether there is any evidence in respect of each element of the offence.

[20] The accused has been charge for indecently annoying any person.

[21] To establish a charge of indecently annoying any person contrary section 213 (1) (a) of the Crimes Decree it must be proved:-

(a) That the accused, Jasbindar Singh.

(b) That with Intent to insult the modesty of Hema Ram, the complainant.

(c) That uttered the words "having sex with Hema Ram and having affairs"

(d) That such words were heard by the said Hema Ram.

[22] PW1 had a number buzzed on her mobile phone. She informed of it to her husband. Her husband called the number. The caller then told to husband (PW2) that he is having affairs with the lady (PW1). They later found out the accused as the caller.

[23] The accused was not identified by PW1 and PW2 positively. There is no evidence in court that the number that was buzzed on the PW1's mobile was the accused person's number.

[24] PW2 said that the caller told him that he is having affairs with the lady (PW1) his wife. The complainant (PW1) did not hear those words. It is a mandatory element that those annoying words must be heard by the complainant (PW1). PW1 never heard those words herself. The charge is that the accused indecently annoyed the complainant by uttering those words.

[25] There is no evidence the accused uttered those annoying words. Also, there is no evidence that those words were heard by the complainant (PW1). PW1 only told that she had a number buzzed on her mobile phone.

[26] In my judgment there is no evidence in court to show that the accused uttered those annoying words to the complainant and those words were heard by the complainant.

[27] There is no sufficient evidence in respect of each one of the element of the offence charged namely to establish the important element that the word uttered must be heard by the complainant.

Conclusion

[28] In my judgment it appears to me that a case is not made out against the accused person sufficiently to require him to make a defence. I therefore dismiss the case and acquit the accused accordingly.

................................................
M H Mohamed Ajmeer
Resident Magistrate
Dated this 13th day of September 2012.
At Nadi