Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Khan [2022] FJMC 20; Miscellaneous Case 11 of 2020 (8 March 2022)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI WESTERN DIVISION
CRIMINAL JURISDICTION

Miscellaneous Case No: 11 of 2020

BETWEEN : THE STATE
Applicant

AND

1. TANZEEL KHAN
2. MOHAMMED IFTHIKAR

Respondent Claimants

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Sentence : 08^th day of March, 2022

Inspector Parmesh Chand for the Applicant
Mr. Anil J. Singh for Respondent 1
Ms. Salote Veitokiyaki for Respondent 2

RULING

1. This case has been initiated by PC Ritesh Chand of Nadi Police Station by an application made under Section 159 (1) (a) of the Criminal Procedure Act seeking an order from court deciding the person entitled to the possession of the light brown cow which is held in impound at Nawaka for safe keeping since the ownership of the cow is doubtful.
2. Upon a complaint made by the 2^nd respondent to Nadi police in August 2019, the police have recovered the relevant cow from the custody of the 1^st Respondent and ever since the cow has been held in the custody of the police.
3. Both the respondents have claimed that the cow has their respective brands on her and the applicant has informed in the application that the cow has been examined by an officer from the Ministry of Agriculture who has confirmed that the cow had a previous brand which was not clear on the left shoulder, upon the same place where she has been later rebranded with the brand ‘NKE’. Although the applicant police have failed to tender to court the letter of confirmation issued by the officer from the Ministry of Agriculture, the counsel for the 1^st claimant-respondent has taken step to tender to court a copy of the same with their written submissions.
4. The hearing has commenced on the 23^rd of December 2020 when the 2^nd Claimant- respondent has been called to give evidence. He has been examined by the police prosecutor as well as the counsel for the 2^nd respondent before he was thoroughly cross examined by the learned counsel for the 1^st respondent.
5. However, on the next date, 05^th January 2021 when the matter has been fixed for further hearing, the counsel for the 1^st respondent has made submissions to court suggesting to dispose the further hearing by way of written submissions and documentary evidence in order to expedite the hearing, to which both the police and the learned counsel for the 2^nd respondent have agreed.
6. Accordingly, written submissions on behalf of both the respondents have been filed and an affidavit affirmed by the 1^st respondent has been filed together with some photographs as evidence. The following statements including the statements made by some villagers to the police and the statements of the respondents, too have been placed before this court.
   4. The statement of Mohd Ifthikar dated 24^th January 2020
   5. The statement of Sherin Nisha dated 23^rd January 2020
   6. The statement of Mohd. Shamim dated 12^th May 2020
   7. The statement of Epeli Turuva 30^th April 2020
   8. The statement of Sharvan Kumar dated18th March 2020
   9. The statement of Sunil Kumar dated 18th March 2020
   10. The statement of Sanjesh Kumar dated 18th March 2020
   11. The statement of Vijeshwar Chand dated 18th March 2020
   50. The statement of Vinod Kumar dated 18th March 2020
   13. The statement of Kamlesh Chand dated 18th March 2020
   14. The statement of Tanzeel Khan dated 26th August 2019
       
7. Analyzing of Evidence

7.1 It needs to be considered at the beginning that the best evidence before this court in this case is the evidence of the 2^nd respondent Mohammed Ifthikar. Because his evidence has been recorded under oath in open court and has been fully subjected to cross examination by the learned counsel for the opposition. Court has been able to observe his demeanour, as well as to question him whenever necessity arose for the sake of clarification.
7.2 Although, many Statements of the villagers have been recorded by the police and have been placed before this court for consideration as evidence, upon examination of them it was revealed that all of them have been recorded between January 2020 and May 2020 whilst the cow in question has been taken into police custody in August 2019. There had been ample time to prepare and groom the makers of such statements to make the statements to support a particular party that claimed the cow. It is not clear what personnel affiliations they have with any of the respondents and there motives of making such statements to police. Further, the makers of such statements have not been before court and have not been subjected to cross examination. As such. It does not seem safe to rely upon those police statements of the 3^rd parties when deciding the person who is actually entitled for the possession of the cow.
7.3 However, the Statement made by the 1^st Respondent seems very important as it has been made to the police on the 26^th of August 2019, right after the cow has been taken into police custody and there has been no time at all for the 1^st respondent to create a false story.

8.1 The 2^nd respondent, in his evidence to court, has explained his case at length and stated that he has bought the cow in question in the year 2017.
8.2 While he is employed as a debt collector to Courts Fiji Ltd, part-timely he has been doing Pineapple farming.
8.3 When his first wife has passed away, he has married his present wife, Sherin Nisha Ali in the year 2016 and has bought her a cow from a farmer in Nawaka, namely Mohd Shameem. To buy the cow, he has paid $300 in cash and has exchanged a horse to the value of $500. The receipt dated 16^th March 2017 proving the purchase of the cow has been tendered to court as evidence marked as ‘C’.
8.4 At the time he bought the cow, the seller has informed him that he has not put any brand on the cow as she was pregnant. However, after bringing the cow home, the respondent had to put his brand on the cow since there was no brand at all on her. But since she was pregnant, only a light branding has been put on her while she was standing.
8.5 This cow has gone missing in December 2019 and the 2^nd respondent, after searching everywhere for the cow, has complained to the police to no avail. The police have instructed him to search more for the cow and to let them know if he comes across any information.
8.6 In September or October 2019, while the 2^nd respondent was riding horseback together with his two sons to attend some horse races that were held in Togo, they have seen a cow tethered at the 1^st respondent’s property, which they have identified as their missing cow.
8.7 He described his cow to court and explained how he identified her. According to him, his missing cow has rope cut marks on her back legs. He explained how her legs were injured. Apparently, she has been upset that she was tethered in the farm while her newborn calf was held at home and therefore, she has been running around to break free and in the process, has gotten entangled by the rope that she was tied down and fallen down. Her back legs have been badly cut by the rope for which the witness had to seek assistance of a veterinary surgeon. He claimed that although the wounds were healed, the rope cut marks were still visible enabling him to identify his missing cow. He tendered to court two photographs marked as ‘A’ and ‘B’ that shows the cow and the cut marks on her hind legs. He has even noticed his Brand still there on the cow, under the brand of Tanzeel.
8.8 Tanzeel, the 1^st respondent is his cousin and when he has identified the missing cow at the back of Tanzeel’s house, the 2^nd respondent has told the 1^st respondent that the cow belonged to him and has invited him to sit down and talk about the cow. The 1^st respondent has then told him that he has bought the cow just recently from one Sarwan.
8.9 The 2^nd respondent has known the said Sarwan and therefore, he has visited him to inquire about the person who had sold the cow to him. However, he was not satisfied with his response Sarwan has given him and with feelings of suspicion, he has decided to report the matter to the police. At the police station he has managed to locate the report he had made to police in the year 2017 about his missing cow and has managed to take the police officers to the 1^st respondent’s house.
8.10 Although this witness was vehement that he has made a statements to police when the cow went missing in 2017 and when he located the cow in the backyard of the 1^st respondent in August 2019, the prosecution has failed to tender those statements made by the 2^nd respondent to court. The only statement placed before court by the prosecution is the statement he made to police on the 24^th January 2020.
8.11 However, it is noted upon perusal of his statement dated 24^th January 2020 that he has mentioned therein, that the officers of the Nadi police have recorded his statement when he reported in December 2017 that his cow was missing.
8.12 Further, he has mentioned in the statement that he has noted how a second branding with letters NKE has been placed on his brand with letters ZVK and that a veterinary officer who inspected the cow has confirmed that the cow has been branded twice.

9.1 It is quite interesting how the 1^st respondent in his Affidavit evidence has stated to court that the cow he had bought at the end of June 2019 had a faded brand on her which was not visible to the naked eye and he believed that the said brand belonged to Sarwan Kumar from whom he had bought the cow. However, in his statement made to police on the 26^th of August 2019, he has vehemently stated that there were no marks or brand on the cow he bought, which seems an important contradiction.
9.2

Further, the officer of the Ministry of Agriculture has confirmed that the cow has been previously branded on her left shoulder before she was rebranded with NKE on the same shoulder. This act of the 1^st Respondent to place his brand on the same place where the old brand has been in place, looks like an attempt to cover the old brand, as pointed out by the 2^nd respondent in his evidence.

It is evident from all the available evidence that the respondents are relatives and had a very good relationship between them until this problem relating to the cow has occurred. The 2^nd respondent pointed out in his evidence that Tanzeel has known about his cow being stolen about a year ago and that he told him about the cow having rope bands on both her back

legs.

When he has identified the cow tied in Tanzeel’s back yard as his missing cow, he has stated to him, “Let us sit down and talk about the cow”. All the available evidence suggest that the parties had a very good relationship between them and that the 2^nd respondent had no reason to make a false allegation and claim the cow in the possession of the 1^st respondent and tarnish the good relationship they had, if he genuinely had not believed it was his missing cow.

9.5

Both the parties have tendered photographs to court as evidence. The cow in the photo marked as ‘A’ that was tendered to court by the 2^nd respondent and the cow in the photo marked as TK-1 tendered by the 1^st respondent look identical including the rope cut marks on the hind legs when the photos are zoomed and examined. Therefore, this court is satisfied that the cows in both the said photos are the same.

Upon perusal of the statement dated 26^th August 2019 made by the 1^st respondent to the police, it is further noted that he has mentioned about buying only a cow for $1000 and that he has been silent about buying a white colour calf too for the said amount. However, it is not clear why he has mentioned about buying both the cow in question and the white colour calf for $1000 in his affidavit to this court in January 2021 and has submitted a photo of the calf too.

Further, although the 1^st respondent claims about buying the cow from Sarwan for $1000, which is a huge amount of money, he has no documents to prove the same whereas the 2^nd respondent has held onto his receipt and managed to prove his purchase in the year 2017.

Furthermore, two of the photos tendered by the 1^st Respondent, namely Tk-2 and Tk-3 look suspicious and photo-shopped as pointed out by the 2^nd respondent in the written submissions. The author of those photographs was never before court to be questioned about their genuineness, especially when the child in Tk-3 looks like floating in the air and his foot does not rest upon anything solid on the ground.

9.9 It is obvious that the police have recorded statements of not only the 1^st respondent while they progressed with their investigations, around the time they took the cow into their custody closer to 26^th August 2019, but also the statements of other important persons to this case, such as Sarwan Kumar from whom the 1^st respondent claims to have bought the cow and Epeli from whom Sarwan has bought the cow in 2016. However, such statements have not been placed before this court and that creates a doubt in the mind of this court. While such statements would have assisted this court to understand the

real scenarios and helped court to take a fair decision in this case, believing the belated statements recorded (on 18^th March 2019 and 30^th April 2019) by police from the said two persons would be dangerous as they could have been created according to afterthoughts of the relevant parties upon legal advice.

10.1 Accordingly, this court is satisfied that the cow that has been taken by the police from the custody of the 1^st respondent in August 2019, is the same cow that has been stolen from the 2^nd respondent about which he has complained to police in December 2017.
10.2 Therefore, it is ordered that the 2^nd respondent is the person entitled to the possession of the light brown cow which is held in impound at Nawaka and the police is ordered to release the same to the 2^nd respondent forthwith.

11. 28 days to appeal against this order.

DATED at Nadi 08^th of March 2022.
.........................................
Nilmini Ferdinandez
Resident Magistrate