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THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE No. 85 of 1977
SOVI GOVIND
s/o Shin Din
Appellant
v.
REGINAM
Respondent
The appellant was convicted by the MagisMagistrates Court Suva on the 27th June, 1977 of Larceny by a Servant and $100.00. He appeals
against conviction.
There are four grounds of appeal as under:
"(a) That the Learned Trial Magistrate erred in law in rejecting the evidence of the Second Persecution Witness. Hence there
has been a substantial miscarriage of justice.
(b) That the Learned Trial Magistrate erred in law in accepting the evidence of the fourth Prosecution Witness end giving it the weight
which he did give. Hence there has been a substantial miscarriage of justice.
(c) That the Learned Trial Magistrate erred in law in convicting the Petitioner when there was no evidence of any loss of the Complainant's
property. Hence there has been a substantial miscarriage of justice.
(d) That the verdict is unreasonable having regard to the evidence as a whole."
It was established that the appellant was a van driver employed by the Tip Top Ice Cream Company on in 11th January, 1977 the day the alleged offence is said to have been committed. The property of the company alleged to be stolen were 24
packets of Chicken Soup Packs.
According to P.W.3 John Man Chandra, a shop keeper, the appellant on the day in question brought to his shop a carton in which there
were 24 chicken pieces which he asked the witness to put in the shop freezer as the appellant was going on a long run and had no
freezer and would call and pick up the carton that afternoon. The police came that day making enquiries and took away the carton
which had a Tip Top label on it.
This witness P.W.3 was at the time serving a sentence for receiving stolen property. He had previously been to prison for forgery
and also for rape.
P.W.2 Ramendra Prasad, a delivery boy, employed by the Tip Top Ice Creame Company was called by the prosecution and testified that
on the day in question he went with the appellant, who drove the van, on deliveries of in Company goods. He, stated he knew P.W.3
John Man Chandra's shop and he stated that the appellant delivered nothing to his shop on that day.
At that stage of P.W.3's evidence in, prosecutor advised the Court that the witness was making a statement completely different from
his previous statement to the police. The prosecutor produced the statement and asked the Court to declare the witness hostile.
The trial Magistrate directed that the statement be put to the witness who admitted it was his statement our alleged it was not read
back to him but that he had signed it.
The trial Magistrate stated as follows:
"Don't see that I can treat this P.W. as hostile. He is simply saying that the statement was not read back to him that he made
it in Hindi. He agrees he signed it. I note, it was in English. I don't feel that on what is before me I can treat him as hostile."
The prosecutor asked the witness no further questions and he was not cross-examined.
The learned trial in his judgment referred to the evidence of this witness. He referred to the fact that after perusing the statement
he was satisfied that P.W.2 was then saying something in Court that was at great variance with what was contained in that statement.
He also stated that because the Court was not satisfied
P.W.2 was being hostile, he had refused leave to treat him as hostile.
Later in his judgment the learned Magistrate stated:
"So far as P.W.2 is concerned because there is a clash between what he said in Court and what he allegedly told the police, I
am in doubt as to the value to be given to this P.W's evidence. It may be that there was a misunderstanding by the officer recording
the P.W.'s statement at the police station it may be that the P.W. out of misguided loyalty to his workmate decided to contradict
his Statement to the police. I don't know the true position and for that reason deem it enter to reject this P.W.'s evidence in its
entirety."
It is this extract from the judgment which is the basis of the first ground of appeal.
The evidence given by P.W.2 or oath was evidence which should have been, considered by the trial when he. refused to allow him to
be treated a hostile, In 'effect the trial Magistrate's rejection of P.W.2's evidence for the reasons he, gave had the same result
as if P,W.2 had been declared hostile.
The trial Magistrate clearly had doubts based on a prior statement which was not in evidence which be did not resolve and he rejected
sworn evidence which considerably assisted the appellant.
It may be that P.W.2 should have been declared hostile but that did not happen and in my view the sworn evidence should have been
considered. That evidence indicated the a appellant made no delivery to P.W.3 on the day in question.
The appellant was convicted on the evidence of P.W.3 and the trial Magistrate was very cognisant of the fact that P.W.3 was a witness
of bad character and he treated him as if he were an accomplice. The trial Magistrate accepted the evidence of P.W.3 that the appellant
had brought the soup packs to P.W.3's shop and the Magistrate stated he was satisfied beyond reasonable doubt that the soup pack
and the carton in which they were contained were the property of the Company and that they were taken out of the possession of the
Company by means best known to the accused and that by so doing the accused intended to permanantly deprive his employer of that
property.
The only witness called to identify the property was P.W.4., the Company Freezer Manager. He identified a carton marked 'TIPTOP' as
belonging to his employer which had 24 pockets of soup packs in it which he said are made by TIP TOP. Those soup packs had no special
marks on them and he did not identify them as property of the Company.
In cross-examination he said he identified the carton because of the mark 'TIP TOP' on it and he admitted he had never seen the carbon
before seeing it at the Samabula Police Station
There was evidence that the Company has a security guard and that all freezer goods are checked out of the freezer by the freezer
boy, the guard and the driver into the deliver van and there are also orders for the goods put on the van which were not produced
in evidence showing what goods were in the van when the appellant went out that day on deliveries.
No effort was made by the prosecution to establish that a carton of soup packs the property of the Company was passing on the 11th
January 1977 or even that a carton of soup packs had been put on the delivery van. Nor was any witness employed by the Company called
to establish that the Company not sold any soup backs to the appellant.
The totality of the evidence against the appellant was on the 11th January 1977 he brought a TIP TOP carton said to be the property
of the Company because it was marked 'TIP TOP' to P.W.3 containing 24 soup packs made by the Company and asked P.W.3 to put the carton
in the freezer as the appellant was going on a long run and had no freezer and would call for the carton in the afternoon. In a cautioned
question and answer statement made to the police which the appellant was under no obligation to make he denied stealing the soup
packs or delivering them to P.W.3. In answer to the question:
"Did you put 24 pockets of chicken soup in John Chandra's deep freezer and told him to keep it you will pick it at 2 p.m. today
11/1/77 ?"
he said :
"I don't know."
This evidence in my view raises a suspicion but falls short of proof beyond reasonable doubt of the offence of larceny. Had it been
established that a carbon of soup pecks was missing from the Company or not accounted for from the deliveries that day that suspicion
would have been strengthened.
Holding as I do that the sworn evidence of P.W.2 should not in the circumstances have been ignored by the trial magistrate on my consideration
of the record I am not satisfied that the prosecution established the offence beyond reasonable doubt. That being so the appellant
must be given the benefit of that doubt.
The appeal is allowed. The conviction is quashed and the sentence set aside. The fine if paid is to be refunded to the appellant.
R.G.Kermode
JUDGE
Suva,
29th September, 1977.
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