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State v Buksh [2017] FJMC 138; Criminal Case 339.2009 (10 November 2017)

IN THE MAGISTRATE’S COURT AT LABASA

CRIMINAL JURISDICTION

Criminal Case No. 339 of 2009

STATE

v

NAZIM BUKSH

For the Prosecution : CPL Monish

For the Accused : Mr Prasad. S

Judgment : 10 November 2017

JUDGMENT

1. The accused, Nazim Buksh is charge for Kidnapping With Intent To Confine Person, contrary to section 251 of the Penal Code, Cap 17.
   
2. The particulars of the offences are;-

“ Nazim Buksh on the 18^th day of May 2009, at Labasa in the Northern Division kidnapped Shereen Shabnam Buksh with intent to cause the said Shereen Shabnam Buksh to be secretly and wrongly confined.”

3. The court record shows that the charge has not been put to the accused for plea. The fact that trial has been concluded where the accused is represented by counsel and denying the allegation, I will draw an inference that the Accused is maintaining a plea of not guilty plea to the charge.
4. On 25 June 2015, the Prosecution confirmed that there is no admission in the caution interview. The case proceeded to trial on 16 February 2017.
   
5. On the trial date, the Prosecution called two witnesses. The Accused is the only witness for the defence.
   
6. Section 251 of the Penal Code state;-

“Any person who kidnaps or abducts any person with intent to cause that person to be secretly and wrongly confined, is guilty of a felony, and is liable to imprisonment for seven years.”

7. Section 248 of the Penal Code provides;-

“For the purpose of this chapter-

1. any person who conveys any person beyond the limits of Fiji without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person; and
2. any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
   

8. The elements of the offence are;-
   1. the accused,
   2. kidnap the victim,
      100. with intent,
   4. to secretly and wrongly confine the victim.
      
9. I now look into the Prosecution evidence. The victim, Shereen Shabnam Buksh is the first witness. She identified the accused in court as they were married and had one daughter. They are currently separated.
   
10. On 18 May 2009, after 1 o’clock in the afternoon the victim was at her boyfriend’s house when the accused and another boy came in a taxi. She was outside when the accused asked her to go with him and she said no. The accused hold her hand forcefully and forcefully took her to the taxi. The other boy came and assists the accused in taking her to the taxi and made her sit in the taxi. She was sitting in the middle, the accused on one of her side and the other boy on her other side. When the taxi stop at the accused house, she requested the accused if he can drop her back as she did not want to go with him. The accused slapped her, hold her hand and pulled her to his house and make her sit on a chair in a room. The accused family members were in the house. The room was open and everyone come and goes to check on her. She informed the accused that she wanted to go to the washroom and the accused told her to go with Appu a small girl. She wanted to run away and the accused saw her, brought her back, make her sit on a wooden chair and tied her hands with a rope. The accused informed his family members if anyone come and asking for her they have to say that she is not there. The accused than took her to the bush beside his house. She told the accused that she did not want to go with her and the accused slapped her face and tied her hands to a balabala tree with a rope and the accused went back to his house. After a while the accused returned and told her that if the police came she has to inform them that she came on her own. They went down to the accused house when the police came. She ran to the police vehicle.
    
11. The police then took her to his grandfather’s place where her father and grandparents were there. The police took her statement there. She said the accused took her on daylight and she return in the afternoon. Again she said the accused took her on 18 and the whole night the accused kept her and on the next day the police took her.
    
12. In cross-examination she said she was kidnapped by the accused. On that day only her father in law was at home sleeping. She gave her statement to police on 19 and 20 of May 2009. She did inform the police of the other boy that came with the accused and she gave the name of that boy to the police. She did not write or read her statement and not sure if the police write it down or otherwise. All the neighbours went to work and that why she did not make any noise. The taxi stop in a neighbour’s driveway. When she went into the house the accused told her to go with her. She called her father in law but he did not hear her. She did not report to Hassad the taxi driver. She did not want to get off and she requested the driver to drop her back. She was shouting but no house was there. She spent one night with the accused fighting over their daughter. She was referred to her first statement line 19 where she said that she did not want any action to be taken against the accused and also line 21 where she requested the police not to take any action against the accused. She denied gave any statement on 20 May 2009. When her statement of 20 May 2009 given to her she confirmed her signature. She said she gave her statement all in one day that is on 19 May and not on 19 May and the police must be mistaken on the date.

13. The victim’s father is the second prosecution witness. He said that on 18 May 2009 the accused called him that his daughter the victim is with him. He came to Labasa on next day. He arrives at Labasa at 5pm and went to his in laws at Korotari and when he arrived there the police already took her daughter the victim. The police took his statement at 7pm.
    
14. The accused in his evidence stated that the victim called him on 18 May 2009 informing him that she wanted to come back to him. He went to the police station and he went with the police to the victim. The victim did not want to go into the police vehicle and he went back to town to bring Hassad Ali’s taxi. When the taxi slowed down in their driveway the father in law sitting in the front verandah and the victim signal to them to park on the neighbour’s driveway on top. When they reach there the victim was there. It was only him and the driver in the taxi. The accused deny the allegation of kidnapping, force, and assault as the victim wanted to go with him and she came freely into the taxi. They slept together on that night and everything was fine.
    
15. The onus is on the Prosecution to prove his case beyond reasonable doubt.
    
16. The Prosecution through the victim’s evidence has established the elements of the offence required for this case. The issue now is on credibility considering the denial of the accused and his evidence. In considering the credibility I will look into the demeanour of the witnesses and evidence on it consistency and contradiction.
    
17. The victim stated she was forcefully taken from her boyfriends place at Lajonia. This was happen in front of a boy and the taxi driver. The driver and that boy was never call to the stand by the Prosecution for unknown reason. The victim stated that she gave the name of the boy and the taxi driver to the Prosecution. There evidence is crucial to the Prosecution case on the element of kidnapping by forceful means considering the inconsistency in the victim’s evidence referred to hereinafter.
    
18. There is two version of the victim story. One she said she came back with the police on the same day the accused took her. The other version is that she spent one night at the accused place where they argue and fought over their daughter. This was not even clarified by the Prosecution as to which version is correct as that was evidence in chief. In the early stage of cross-examination the victim confirmed she gave statement to the police on 19 and 20 May 2009. Later in the cross-examination she deny giving statement on 20 May 2009 even though she confirmed her name and signature in that statement. This is the statement where she said she did not want the police to take any action against the accused.
    
19. In assessing the credibility of the victim and the accused, I will accept the evidence of the accused and reject the evidence of the victim due to inconsistent and contradictory evidence. I accept the accused evidence that the victim was not kidnapped or forced by the accused she went with the accused on her own free will.
    
20. In assessing the evidence, after not accepting the victim’s evidence, I find that the Prosecution failed to prove his case beyond reasonable doubt.
    
21. In my judgment, I find the accused not guilty as charged and I acquit the accused accordingly.
    

28 days to appeal.

C. M. Tuberi

RESIDENT MAGISTRATE