IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI
CRIMINAL JURISDICTION

Nadi Criminal Case No. 1497 Of 2008

BETWEEN:

THE STATE

AND:

DAVID MUNIAPPA

Cpl Ajay Kumar for the prosecution
Ms. Laisani Tabuakuro for accused
Date of Ruling: 13.08.2012 

RULING
[On no case to answer]

THE APPLICATION

1.	This is an application by the defence counsel under Section 178 of the Criminal Procedure Decree, No.94 of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the Accused to his defence and as a result the Accused should be acquitted.

2.	The defence, in the written submissions filed in court, further submitted that the prosecution has not led any evidence either direct or circumstantial to prove the element of offence of "takes and carries away", it is the actus reus of the offending, evidence must be produced by the prosecution to prove this element at the close of the prosecution case and there must be a prima facia case to put the accused to his defence.

PROSECUTION'S RESPONSE 

3.	It was orally submitted by the prosecution that:

a.	That in light of evidence adduced the prosecution has produced sufficient evidence to prove each element of the charge.

b.	That PW1 positively identified the stolen sprinklers which were later found at the Accused's farm as his.

c.	That the prosecution's evidence proved the elements of the offence of "Larceny" therefore it has established a prima facie case.

THE GOVERNING SECTION

4.	The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads:

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused".

THE CHARGE

5.	The accused was formally charged with one count of larceny as follows:

Statement of Offence (a)

LARCENY: Contrary to sections 259 and 262 of the Penal Code Cap 17.

Particulars of Offence (b)

DAVID MUNIAPPA s/o MUTHAIYA between the 1st day of May 2008 and 24th day of June 2008 at Nadi in the Western Division stole 3 water sprinklers all to the total value of $600.00, the property of SUNIL DUTT s/o CHANDRA DUTT.

THE CHARGING SECTION

6.	Section 259 of the Penal Code postulates that:-

" 259.-(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;
(ii) by intimidation;
(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or
(iv) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

(b) The expression -carries "away" includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.

(c) The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen."

7.	The prosecution must prove the following six elements for the charge of LARCENY:

(i)	 the Accused, David Muniappa,
(ii)	without the consent of the owner, Sunil Dutt
(iii)	fraudulently and 
(iv)	without a claim of right made in good faith
(v)	takes and carries away anything capable of being stolen (3 sprinklers)
(vi)	with intent, at the time of taking, permanently to deprive the owner thereof.

THE LAW 

8.	The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.

"It seems clear 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. In other words, at the close of the prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. 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 nor can any amount of worthless discredited evidence." [Emphasis is added].

9.	In Moidean v Reginam (Criminal Appeal no. 41 of 1976, the Court of Appeal) also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.

10.	Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:

a.	When there is no evidence to prove an essential element in the alleged offence;

b.	When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
c.	The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.

The evidence

11.	 The prosecution produced 4 witnesses namely 1. Sunil Dutt, complainant (PW1), 2. Rajen Singh (PW2), 3. Rajneel Pratap Singh (PW3) and 4. DC 3379 Nitesh (PW4).

12.	The prosecution also tendered the following exhibits: 

(i) 2 sprinklers	P1	
(ii) Caution Interview of David Muniappa	P2	
(iii) Charge Statement (tendered by consent)	P3	

13.	The Defence tendered Police Statement of Sunil Dutt (PW1) marked as D1.

14.	 The application for no case to answer would be determined on the evidence so far laid before this court. I would therefore state what each witness has testified.

15.	The first witness was PW1, the complainant in this case. He testified in examination in chief as follows: -

 "I am a farmer. I have farm in Sigatoka and Solovi. …on 24 June 2008 I went to accused's farm to get the harrow which I lent to him. I found sprinklers on his farm. I went to the place where the sprinklers were used. I saw my 2 sprinklers. I got my harrows and went to police. His labourer was there. I told the accused that they are my sprinklers. He disputed and told it was given by one European man. Before that he came to my place to borrow the harrow.

I don't know the date on which it was missing.

I identified the sprinklers by brand-Fork Premium. The nozzle was bigger. I made it bigger. Usually it is small. Three sprinklers were stolen. Two were recovered. [He identified 2 sprinklers in court by the enlarged nozzle and brand]".

16.	Under Cross Examination PW1 testified and stated as follows:

•	I am farming is Solovi since 2005 and Sigatoka since 1984.
•	I know David Muniappa. He has a farm 1km away from mine.
•	He answered "yes" when suggested that sprinklers are common in any farm.
•	 The accused told me that he does not have any sprinklers.
•	 I am not sure of others having sprinklers. 
•	 I did not report it until 24 June 2008. Previously I reported. They told me go and try to find out.
•	 I enlarged the nozzle. I identified with the nozzle. No other marks.
•	 I made the complaint in 2008. The sprinklers were in police station for 4 years.
•	 I can recognize my sprinklers. I had no need to make false allegation.

17.	In Re-examination PW1 stated that he saw the sprinklers in the accused's farm, looked at properly and identified it as his. He then asked the accused to return but he refused. 

18.	Next PW2 gave sworn evidence. In the Examination in Chief PW2 stated that: PW1 saw the sprinklers at accused's farm. I also saw it. I worked for PW1 for 4 years. I did not say that the sprinklers were same that were used in our farm (PW1's). Police assaulted me and forcefully took my statement. Accused visited PW1's farm few occasions. The accused borrowed a harrow from Sunil (PW1).

19.	Under Cross Examination PW2 stated that he did not say that the sprinklers belonged to PW1. PW1 told they are his spirnklers. There were no special marks on the sprinklers. PW1 forced him to tell that the sprinklers belonged to him otherwise he will throw him out of the job.

20.	PW3 in examination in chief stated that on 19. 04. 2010 he identified two sprinklers as that were issued to Sigatoka farmers by Agriculture Department. He confirmed that these items including the sprinklers were sold to Mr Sunil Dutt (PW1) by their Sigatoka Office. He knew this as he is a senior clerical officer of the Ministry of Agriculture. He further said that they did not issue these items to Nadi farmers.

21.	Under Cross Examination PW3 stated that he told to police that these sprinklers belong to PW1. He identified the sprinklers because of the brand. Ministry of Agriculture had exclusive right to the distribution of these items.

22.	Finally PW4 gave evidence for the prosecution. He is the Investigation Officer in this case. In Examination in chief PW4 stated that he obtained a search warrant and recovered two (2) water sprinklers from the David's (accused's) farm. He said that the complainant (PW1) identified the sprinklers as his. He also told that he caution interviewed the accused and made record of the interview. He identified the sprinklers and the record of the caution interview and tendered marked as P/EXH 1 & P/EXH 2 respectively.

23.	Under Cross Examination he stated that although they received the complaint earlier they charged the accused after recovery of the items stolen from the accused. But he could not recall when the first report was made. He also told that the accused made statement regarding alibi. He confirmed that the Accused told him that he received the sprinklers from a European guy and he (European guy) has gone to America. He further said that complainant reported that 3 sprinklers were stolen but he managed to recover only 2 sprinklers from the accused.

24.	In Re-Examination PW4 stated that he could not investigate alibi because the accused did not give full details of alibi and two (2) sprinklers were recovered from the accused.

THE DETERMINATION

25.	It is for the court to determine whether there is sufficient evidence in respect of each one of element of the offence of larceny to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 187 of the Criminal Procedure Decree 2009.

26.	The accused has been charged with one count of larceny. It is alleged that between 1st of May of 2008 and 24th of June 2008 the accused stole 3 water sprinklers all to the total value of $600.00, the property of Sunil Dutt (PW1).

27.	In support of its case the prosecution has led oral evidence of PW1, PW2, PW3 and PW4 and tendered as evidence two (2) water sprinklers (P/EXH 1), Caution Interview of the accused (P/EXH 2) and Charge of Statement of the accused (P/EXH 3).

28.	The Defence did not dispute identity of the accused because the accused has sufficiently been indentified by recognition. Hence the first element of the charge that the accused David Muniappa has been established. 

29.	PW1 stated in evidence that the 2 sprinklers were recovered from the accused's farm while they were in use at his farm. He told in court that the sprinklers are his and he identified them with brand and nozzle. He also stated that he had enlarged the nozzle of his water sprinklers. PW1 also identified the water sprinklers with that enlarged nozzle. When he found the sprinkler in the accused's farm, he asked for the return but he refused. Then he reported the matter to police. After that police recovered them from the Accused.

30.	PW2 although he contradicted his own statement made to police confirmed that the water sprinklers were found in the accused farm and recovered by police. He further told that PW1 identified those two sprinklers as his after checking on the nozzles.

31.	PW3 senior clerical officer of the Ministry of Agriculture confirmed that the sprinklers were distributed to Sigatoka farmers. He identified them by the brand and told the sprinklers (EXH 1) shown to him had been modified in the nozzle by enlarging the hole. He also confirmed that such water sprinklers were distributed to PW1.

32.	PW4 was the Investigation Officer in this case who confirmed that he recovered two water sprinklers from the accused upon search under a search warrant. He recognized them (EXH 1) in court as the same that were recovered from the accused.

33.	Two sprinklers were recovered at the accused's farm. This is sufficient to prove taking and carrying away of the sprinklers.

34.	There has been sufficient evidence in court that two sprinkler were recovered from the accused. PW1 positively identified the recovered items as his after examining the brand and nozzle. Therefore the stolen items have been recovered from the possession of the accused. This would be sufficient evidence to prove all other elements of the charge namely elements (ii) to (vi) as stated above in paragraph 7 of this ruling.

35.	In my judgment the evidence adduced by the prosecution has not been discredited as a result of cross examination.

CONCLUSION

36.	In my judgment, I find that a case to answer the charge of larceny of 2 sprinklers valued at $400.00 (not as charged with larceny of 3 sprinklers) and require the accused to make a defence. I so amend the charge and put the accused his options.

....................................................
M H Mohamed Ajmeer
Resident Magistrate

Signed at Nadi on this 13th day of September 2012