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State v Kumar [2024] FJMC 17; Criminal Case 186 of 2020 (17 June 2024)

IN THE MAGISTRATE’S COURT IN FIJI AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 186/20

THE STATE -v- RONISH RESHMA KUMAR

For the Prosecution: Sgt Cerei
For the Accused: Ms. Dutt and Ms. Chand

JUDGMENT

1. The Accused is charged with the following charge: -

Statement of offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act No.44 of 2009

Particulars of offence

RONISH RESHMA KUMAR on the 21^st of May 2022 at Sigatoka, in the Western Division assaulted SHIVNIL KARTIK LAL, thereby occasioning her actual bodily harm.

2. The Accused pleaded not guilty to the above charge and so the matter proceeded to Trial.

The Prosecution Case

3. Prosecution Witness 1 is Shivneel Kartik Lal, Police Officer of Kulukulu. He recalls around 8pm to 10pm on the day in question, he was at home with his ex-wife, the Accused and their daughter. He was drinking beer with the Accused conversing about work the next day when the Accused started to argue with him accusing him that he just wanted to meet someone the next day. He then went to sleep. While sleeping she woke him by holding his right hand and scratched it. She then held his collar and strangled his neck. As a result, he wanted to leave the house. She went to the kitchen got a chopper, held his left hand and struck the bottom of his left upper arm. He then said that he will inform the police about the incident and in response, she cut her left forearm three times stating that if he told the police she will tell them that he struck her. However, he still called the police and spoke to Cpl Anilesh who was on duty and reported the matter. He was then medically examined and was found to have sustained multiple abrasions on his right arm and right ante fossa, abrasions on the neck, hematoma on his left arm and abrasions on his left arm.

In cross-examination, he states that he was not drunk that day as he had only 3 bottles shared between them.

4. Prosecution tendered in Prosecution Exhibit 1 (PE1), the Medical Report of PW1.

5. Prosecution then closed its case. The Court found that there was a Case to Answer and as such the Accused elected to give sworn evidence.

The Defense Case

6. The Accused is a Manager of Kulukulu. On the night in question, she states that PW1 got angry at her about the house. PW1 was drinking beer in the living room. PW1 then punched her right eye while she was sitting and got a chopper and the car key from the kitchen and said he wanted to kill her. She then hid the car key and he then struck her right hand with the chopper. She left her nail marks on his hand. The police then came and she informed them about what happened but they only took PW1’s statement. The next morning the police came back and arrested her. She also filed a cross-report at the station about PW1.

In cross-examination, she states that the Accused hit her left hand with the chopper.

7. Defense closed its case.

Analysis

8. The State bears the burden of proving the elements of the charge beyond reasonable doubt:
   1. The Accused
   2. assaulted PW1
   3. thereby occasioning him actual bodily harm
9. In the course of the Trial, it became apparent that element 1 was not in dispute as the Accused admits she was present at the time of the altercation. Therefore, we will look at what evidence is there to support elements 2 and 3 of the charge.
10. Did the Accused assault PW1? PW1 states that the Accused after an argument he went to sleep when suddenly she held his right hand and scratched it. She then held his collar and strangled his neck. As a result, he wanted to leave the house. She went to the kitchen got a chopper, held his left hand and struck the bottom of his left upper arm. Prosecution submits that these acts amounted to assault. I am satisfied that this is sufficient to prove this element of assault.
11. Did the Accused’s assault on PW1 result in actual bodily harm? PW1 states that after he lodged the report after the incident he went to the Sigatoka Hospital to be examined and they issued him with PE1 which stated that sustained multiple abrasions on his right arm and right ante fossa, abrasions on the neck, hematoma on his left arm and abrasions on his left arm. Hence, Prosecution has also proven this element of actual bodily harm.
12. Defense though submits that the Accused who was with the PW1 as the time and place of the altercation was actually the victim and not the perpetrator. She states that PW1 punched her right eye while she was sitting and got a chopper and the car key from the kitchen and said he wanted to kill her. She then hid the car key and he then struck her right hand with the chopper. Consequently, she left her nail marks on PW1’s hand. Again, I note there is no onus on the Accused to prove anything. However, because she has asserted self-defense as her defense and with the both parties relying on one witness respectively, it becomes a classic matter of one word against the other. Therefore, credibility of each witness is now at play.
13. PW1 gave evidence firmly. He withstood cross-examination and maintained his evidence. His account of how the assault transpired, that is, that the Accused right hand, neck and then left arm is also reflected in that order in the history section of PE1. This shows consistency. I therefore find PW1 as a credible witness.
14. The Accused said in her defense she left her nail marks on PW1’s hand. Before proceeding further, by saying in evidence “leaving nail marks on PW1’s hand” was something odd by reasonable standards. Defense did not elicit from her what she actually did that resulted in this nor did she feel the need to explain. It can be strongly implied that it was as if the Accused deliberately and immediately omitted to describe her action did conceal what actually happened. Also, the Accused stated in her evidence in chief that PW1 struck her right hand, however, in her cross-examination, she changed her evidence by saying she was struck on her left hand and maintained the same. This was a significant contradiction that went against her credibility. Further, there is no supporting evidence of the Accused injuries. I therefore do not find the Accused as a credible witness.

Finding

15. In light of the above observations and the testimony of witnesses in its entirety in this matter, I find that the State has proved all the elements of the charge of Assault Causing Actual Bodily Harm against the Accused beyond reasonable doubt.
16. Ronish Reshma Kumar with respect to the charge that has been laid against you, I hereby find you are guilty as charged.

17. We will now proceed to mitigation.

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J Daurewa
Resident Magistrate

17^th June 2024