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State v Kumar [2015] FJMC 136; Criminal Case 405.2013 (27 October 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 405 of 2013

STATE

V

HEMANT KUMAR

Prosecution : PC Monish
Accused : Mr Fesaitu. M
Judgment : 27 October 2015

NO CASE TO ANSWER

1. The Accused, Hemant Kumar is charge with one count of Criminal Intimidation contrary to section 375(1)(a)(iv) of the Crimes Decree 2009.
   
2. The particulars of the offence is that, the Accused on the 1st day of June 2013, at Kurukuru Labasa without lawful excuse threatened Bhim Deo with intent to cause alarm to Bhim Deo.
   
3. The Accused pleaded not guilty to the charge on 12 August 2013, and the case proceeded for hearing on 27 July 2015.
   

4. On the hearing date, the Prosecution called three witnesses which includes one police officer and two civilian witness. One of the civilian witness is the complainant in this case. The police officer is the interviewing officer and the charging officer.

5. At the end of the prosecution case, once the Prosecution closed his case, the Defence Counsel make an oral application to file a no case to answer submission. The Defence Counsel filed his no case to answer submission on 12 August 2015. The application was made pursuant to section 178 of the Criminal Procedure Decree 2009.

6. The Defence submit that the Prosecution has not adduced sufficient evidence for the court to convict on. The Victim and his wife's evidence contradicts each other. The Victim's evidence is that the Accused told him that he will hit him. The wife's evidence is the Accused said he will kill him. The Victim's evidence that he felt nothing when the threat was made. The Defence further submit that the evidence of the Victim and his wife is unreliable and contradicting and no reasonable tribunal could safely convict on it.

7. With the submission from the Defence, I refer to the case of R v Jai Chand (1972) 18 FLR 101, where it was held;-

"...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...However, the question does 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 not can any amount of worthless discredited evidence''.

8. The Defence also refer to the case of Moidean v R, Criminal Appeal No. 41 of 1976 and Rohit Ram Latchan v State, Criminal Action No. HAA32 of 1996, where the Court of Appeal held that a no case to answer may be properly made and upheld if there is no evidence to prove an essential element in the alleged offence.

9. The Victim in her evidence in chief state that the Accused brought one knife and said that "I will kill you" and also said that "I will hit you, why you came this way". The Victim's wife in her evidence confirmed that the Accused came with the knife to hit and told the Victim that he will kill him. Both the Victim and his wife confirmed their evidence or story during cross examination. According to the Victim when the Accused uttered those words he did not feel anything but reported the matter so the incident do not happened again. One of the element of the offence is causing alarm and the Victim in his evidence state that the reason he reported the matter to Police was that so it does not happen again.

10. In this ruling, considering the requirements laid down in aforementioned cited case authorities together with the Prosecution's evidence, I find that there is sufficient evidence adduced by the Prosecution that requires the Accused to put up his defence against the charge.

11. Accordingly, I dismiss the Defence application of no case to answer and the trial will proceed further on the defence case.

Cama M. Tuberi
Resident Magistrate