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State v Chandra [2016] FJMC 78; Criminal Case 832.2016 (28 June 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 832/16

STATE

-v-

VIKASH CHANDRA

Judgment

1] The accused was charged with Assault Causing Actual Bodily Harm; contrary to Sec. 275 of the Crimes Decree 2009. The particulars of the offence are as follows.

VIKASH CHANDRA on the 24th day of May 2014 at Kikau Street, Samabula, in the Central Division assaulted Dinesh Chandra thereby occasioning him actual bodily harm

2] Upon pleading not guilty to the above charge trial proper was fixed. The prosecution called three witnesses and the accused gave evidence for the defence.

3] The complainant is the father of the accused both living in the same house but separated. They share some common facilities of the house.

4] On 25/05/2014 the complainant had an altercation with Rahul, mentally ill young person, who is the son of the accused at the sitting area of the house when there was a visitor for the complainant. Accused was informed about this altercation by his wife as the accused was not at home at the time the altercation was started. When the accused came he also intervened. According to the evidence of the complainant the accused made him lean to the car at the outside the house and slapped. Once the complainant was released he went to his room. Accused then entered the complainant’s room and slapped again on both sides of his face.

5] The complainant’s position was corroborated by an eyewitness who was called as PW2. He is a market vendor who used to sell Cassava,dalo, lemon and vegetables to the complainant. On this particular day he saw the complainant was being slapped by his son through a small window of the complainant’s room.

6] In cross examination of PW2 the defence questioned about his omission to state in the statement that he saw this incident through a small window. The witness admitted that it is not recorded. Despite this omission his evidence is consistent interse and perse.Therefore this omission alone cannot create a reasonable doubt in respect of his truthfulness.

7] The Medical Examination form, marked as PEx 1 reveals that the complainant sustained injuries on his face. Describing the injuries it says that soft tissue injuries were observed on both sides of the eyes. This is consistent to the evidence of the complainant and PW2 who said that he observed bruise injuries on the complainant’s face soon after the incident.

8] Defence suggested in cross examination thatthe complainant received these injuries as result of altercation with Rahul and not by the accused. However PW3 who is the wife of the accused even did not testify that the complainant received any injury during the altercation between the complainant and Rahul. Shewas present during that time according to her evidence which is analysed below.

9] Prosecution called the accused’s wife as PW3. She said in her evidencethat the accused arrived at the scene because of her telephone call about the incident. She said;

“I saw him coming but after what happened I didn’t see”

The accused’s wife further said that she heard voices of the accused and the complainant inside the room but didn’t see anything as she was attending his son. Therefore this evidence is not denying the evidence of the complainant and PW2 but she hasn’t seen the slapping. However this witness said that the accused was not happy with what happened to his son.

10] The accused giving evidence denied the allegation. He admitted however that he went inside the complainant’s room and asked as to why the father was causing troubles to the son who was mentallynot sound. The accused also admitted that he came home because of his wife’s call. He further said that before he arrivedat home he informed the Samabula station about his father’s conduct towards his son. Any statement given to the police should be reduced to writing. Therefore his evidence with regard to the statement about his father’s conduct cannot be relied on without producing the written statement.

11] This court finds that mere denial of the allegation cannot create a doubt on the prosecution evidence when the case for the prosecution is strong.

Accordingly I find the accused guilty to the above charge and enter a conviction.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

28/06/2016