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State v Kumar [2012] FJMC 246; Criminal Case 268.2010 (5 June 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA AT LAUTOKA

Criminal Case no 268/10

BETWEEN

THE STATE

AND

SATEN KUMAR

RULING

1. The accused is charged with one count of larceny contrary to section 259 and 262 of the Penal Code. The Particulars of offence reads as follows;
   

"Saten Kumar between 2006 to 16th June 2009 at Lautoka in the Western Division stole 4 vehicle break lights valued at $ 400 the property of Hemant Kumar."

2. The Case was taken up for hearing on the 18th April 2012. The Prosecution was conducted by a Police Prosecutor and the accused was defended by the Legal Aid Counsel. The Prosecution called three witnesses and closed it's case. Both parties made written submissions on no case to answer.
   
3. Section 178 of the Criminal Procedure Decree states as follows;
   

"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."

4. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
   
   1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
      
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
      
5. In this case the accused is charged with the offence of larceny. Section 259 reads as follows;
   

"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."

6. Basically the court has to consider whether the Prosecution adduced evidence with regard to the elements of the offence and whether the Prosecution evidence is so discredited or unreliable. In this case two main issues were arisen with regard to the identity of the allegedly stolen items and the proof of the elements of the offence.
   
7. I have considered the evidence given by the Prosecution witnesses. It appears that the items are stolen in year 2006. As per the evidence of the Prosecution, four lights believed to be the property of the Complainant were found in 2009 in a shop of one Naresh Chandra. Naresh Chandra gave evidence that the accused gave him four lights to be kept in his shop. He said the said lights were given to him by the accused in 2007. Constable 3860 Sailasa said that he received a complaint from Hemant Kumar on the 16th June 2009 and he was informed that some stolen items were found in a shop. The Complainant, Hemant Kumar gave evidence in the following manner:
   

"I recall 16.06.09 I reported a breaking into Hemant's Motor Works. A bunch of items were stolen. Lights, radiators and other items. I don't remember when it was stolen."

8. It appears from the evidence of the Prosecution that the alleged theft had occurred somewhere in 2006. However there was no evidence to show that the alleged breaking into Hemant Kumar's shop was reported to the Police at that time or what investigations were done. There is no evidence to prove that the four lights which are the subject of the present case were also among the items stolen in the alleged incident in 2006. All what can be gathered from the Complainant's evidence is that he reported to the Police on the 16th June 2009 regarding a breaking into his shop which was alleged to have happened in 2006.
   
9. It appears that the accused is charged purely on the evidence given by the shop owner, Naresh Chandra. The said four lights were found in his shop three years after the alleged theft. According to Naresh Chandra's evidence sometimes in 2007 the accused, who was working in a garage in the back of his shop had given him four lights to be kept in his shop and to sell it if someone needs it. In the circumstances the accused cannot be blamed for even recent possession of the items alleged to have been stolen.
   
10. In 2009 a person named Sunil had come to Naresh Chandra's shop and had taken the lights. According to Naresh Chandra's evidence after a few hours a Police officer had come with Hemant Kumar to inquire about the said lights. However the Prosecution did not call Sunil as a witness to establish how he identified the said items as stolen ones.
    
11. In any event Naresh Chandra admitted during cross examination that he was told by the accused that the accused found those lights when they were lying in his garage yard. Apart from Naresh Chandra's evidence there was no other evidence adduced by the Prosecution to establish a nexus between the accused and the alleged theft.
    
12. Secondly I am not satisfied about the identification of the four lights alleged to have been stolen. It is the paramount duty of the Prosecution to establish the identification of exhibits. The Legal Aid Counsel successfully challenged the identification of the exhibit by the Prosecution witnesses. It should be noted that the evidence given by the Prosecution witnesses regarding the identification of the said lights was patently unreliable and was discredited by the Defence.
    
13. I am not satisfied that the Prosecution could adduce evidence in respect of all the elements of the offence, the accused is charged with. Further I am of the view that the evidence adduced by the Prosecution was so discredited by the Defence as a result of cross examination and also manifestly unreliable that no reasonable tribunal could safely convict the accused on it.
    
14. In the circumstances I acquit the accused from the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

05.06.2012