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State v Ram [2019] FJMC 13; Criminal Case 17 of 2009 (22 February 2019)

IN THE MAGISTRATE’S COURT AT LABASA

CRIMINAL JURISDICTION
Criminal Case No. 17 of 2009

STATE

v

RISHI RAM

Appearance : PC Lal for the prosecution

Accused no appearance

Judgment : 22 February 2019

JUDGMENT

1. The accused, Rishi Ram was charged for Larceny By Servant contrary to section 274(a)(i) of the Penal Code, Cap 17.
   
2. The particulars of the offence are;-

“Rishi Ram s/o Moti Ram between 1^stday of December 2008 to 19^th day of December 2008, at Labasa, in the Northern Division, being employed as labourer by Rajesh Kumar Cartage Contactors stole 3000 empty nylon sacks valued at $1,250.00 the property of Rajesh Kumar Cartage Contractors.”

3. On 1 May 2009, the Accused elected to be tried before the Magistrate Court. On 25 May 2009, the Accused waived his right to counsel and pleaded not guilty to the charge.
4. On 16 March 2015, Mr Sen appeared as counsel for the accused and informed the court that there are admissions and they will challenge the caution interview. Direction was given for the filing of voir dire grounds.
   
5. No voir dire grounds was filed by the accused. The accused has been given the opportunity to challenge his admission in the caution interview, he failed to file any voir dire grounds. The accused also failed to attend court and on 15 May 2017, the Court grants the prosecution application for the case to proceed to trial in absence of the accused. The case proceeded to trial in absence of the accused on 22 November 2017. The Prosecution called 3 witnesses to the stand and closed his case.
   

Law

6. Section 274(a)(i) of the Penal Code, Cap. 17, state;-

“Any person who-

(a) being a clerk or servant or person employed in the capacity of a clerk or servant-

• (i) steals any chattel, money or valuable security belonging to or in possession or power of his master or employer

is guilty of a felony, and is liable to imprisonment for 14 years.”

9. The elements of the offence are;-

a. the accused,
b. being a person employed in the capacity of a clerk or servant,
c. steals any chattel, money, or valuable security,
d. belonging to or in the possession or power of his employer.

10. The burden of proof is on the prosecution to prove all the elements of the offence beyond reasonable doubt.
    

Prosecution Evidence

11. Rajesh Kumar Singh is the first witness for the prosecution. In his evidence, he stated that on 19 December 2008, he was in Labasa. Rishi Ram is one of his sub-contractor to pack sawdust from Tropik Board. He bought 3000 empty mill mix bags of 35kg for $1,200.00 and drop them at Waiqele Sawmill. He was informed that Rishi Ram came in a taxi and took all the empty bags from Waiqele Sawmill. They located Rishi Ram and reported him to the police.
    
12. William Junior is the second witness for the prosecution. He stated in his evidence that from 1 to 19 December 2008, he was working for Rajeshwar Singh. They were delivering items from Viti Levu to Vanua Levu. When they bring the items, they pick the cheaps from Waiqele Sawmill and take it to Crest at Nausori. On 19 December, he was in Labasa. Rishi Ram is sub-contracted to their company. They gave him empty sack to fill. When they came to collect, some of the bags were missing. Rishi Ram sold some to the staff of Waiqele Sawmill. Rishi Ram started evading themselves and he caught him in his house. He informed their boss and they took Rishi Ram to the Police station. He knew Rishi Ram because he comes to them to look for work. About 3000 sacks were missing and they belong to Rajeshwar Singh Company. They usually drop empty sacks with Rishi Ram and they pick the packed sacks.
    
13. DC 3651 Vimal is the third witness for the prosecution. He stated in his evidence that the interviewing officer PC 3680 Nilesh has migrated and the docket finally transferred to him after it goes through many officers. He was not present during the interview. When he read the file, Rishi Ram admitted to stealing the sacks and sold it. He refers to the caution interview and tendered the same as prosecution exhibit 1. He referred to question and answer 17 where the accused admitted stealing the sack and sold it.
    

Analysis and Determination

14. The accused was not preset in court during the trial and was not able to be identified. The First and Second witnesses knew the accused well through their business dealing. Mr William stated that he knew the accused because he used to come to them for work. If the accused was present, I find that there will be no problem by the First and the Second witness for prosecution in identifying the accused.
    
15. The second element is that the accused must be employed by Rajesh Kumar Cartage Contractors as clerk or servant. The First and Second witnesses stated that the accused is a sub-contractor to their company. There is no evidence led to suggest that as a sub-contractor the accused works as a clerk or servant. There is a doubt on this element.
    
16. In question and answer 17 of the caution interview, the accused admitted to stealing the sacks and sold it. The First and Second witnesses stated that the 3000 stolen sacks belongs to Rajesh Kumar Cartage Contractors. These evidence is sufficient to establish the third and the forth elements.
    
17. In assessing the evidence, I find that the Prosecution is unable to prove the second elements of the offence beyond reasonable doubt. That affects the prosecution, accordingly the Prosecution is unable to discharge the burden of proof required.
    
18. In my judgment, I find the accused not guilty as charge. Accordingly, I acquit the accused.
    

28 days to appeal.

C. M. Tuberi
Resident Magistrate