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State v Dass [2013] FJMC 216; Criminal Case 885.2012 (28 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 885/2012

STATE

-v-

USHA DASS

PC Joseph Filipe Raymond for the prosecution
Accused appear in person

JUDGMENT

1] The accused is charged with following offence namely;

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

USHA DASS on the 5th day of January, 2012, at Lot 9 Omkar Road, Narere, Nasinu in the Central Division, with intent to insult the modesty of Shalini Lata uttered the words "Bajjaru meaning Prostitute and Maichod meaning Mother Fucker" intending that such words be heard by the said Shalini Lata.

2] She pleaded not guilty to the charge and hearing was done on 15th May 2013. At the hearing, prosecution called following witnesses to prove its charge.

3] PW1: Shalini Lata: she said she can recall 05th January 2012. She was at home. When she came out of her house the accused, Usha Dass started swearing at her loudly. She said " Maichod and Bajru" the witness said they had a dispute over cutting cocunuts leaves and her husband complained against Usha. It was 11am to 12pm, she sweared at windows. Her son Shiva heard this.

4] In cross examination the accused said she was at her aunt's house in Toorak for her son's birthday. But witness said accused was at home.

5] PW2: Shiva Shonal Chand: this witness is son of the PW1.on 05thJanuary 2012, he was at home with his mother. He said neighbor sweared at her mother. She said Maichod and Bajaru. When he hears this, he was at sitting room her mother was on the house compound.

6] In cross examination the witness confirmed she sweared the mother from inside the house. One Fijian male police officer came to investigate the matter.

7] PW3 PC 4161 Apisolome: he said 26th June 2012 he was on duty. He interviewed, the accused, Usha Dass. Caution interview tendered as EX-1. Charge sheet tendered as EX-2.

8] In cross examination, the witness said report was received from Mr. Mahen Chand that the accused swore at his wife. He said he only recorded the caution interview and he did not attend the investigations.

9] Thereafter the prosecution closed the case. Defence was called.

10] The accused: Usha Dass: The accused said she did not swear at the complainant, instead the complainant and her son sweared at her. They called the police. The accused said that she is ill, got knee problem, had an operation and high blood pressure. The PW1 did not report this matter and when her husband comes he reported. They are torturing her for no reason,; she said. Her husband, Mahen has threatened her. Police officers are listening to them most of the time; they do not come /entertain her reports.

11] In cross examination, the accused said on that day they sweared at her. She admitted she was at home. She then stated she was not at home and she went Aunt's son's birthday. She admitted that they are still not in good terms and it started after the coconut leaves that damaged the fence. She said she did not swear at her neither she did not report this matter police. She said police took statement on 7th January 2012 Saturday.

12] In this case, the prosecution called two lay witnesses. Both are direct witnesses that they experienced the situation. Their evidence is consistence with each other. The accused said that she did not swear at PW1 in fact what happened was PW1 and PW2 swore at her. If so, why she did not complain it to the police at least as cross report. Parties have enmity between over damaging fence and there is possibility to swearing at PW1. The accused initially said she was at her Aunt's son's birthday. She took defence of Alibi. Later she changed her stance stating that she did not swear but P1 and PW2 swore at her. She contradicts herself. She did not call any witness that she was in other place to prove Alibi. I reject defence evidence.

13] In the circumstances, I hold the prosecution proved its case beyond reasonable doubt. I convict the accused as charged.

14] 28 days to appeal

On 28th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu