State v Chand [2007] FJMC 20; Criminal Case No 2047 of 2006 (27 June 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2047 of 2006

STATE

V

SHALVIN SANJIV CHAND
s/o Mahesh Chand

Before Ajmal Gulab Khan Esq

Date of Hearing: 25/06/07
Date of Judgment: 27/06/07

Prosecution: Sgt. Harish
Accused: In Person

JUDGMENT

The accused has been charged for House Breaking Entering and Larceny Contrary to S300 (a) of the Penal Code.

Particulars are on 28/9/06 Shalvin Sanjiv Chand broke entered and stole from house of Prabhashni Chand cash $984 and Motor Rolla Mobile $720 and Nokia Mobile $300.

The complainant gave evidence. Accused is her cousin who used to be in her house for 2 years. His father was a taxi driver. Complainant found her front door lock was forced open. She found out 2 mobiles, cash $984 missing. She knew accused was going on leave to Labasa and gave his name to police as a suspect. Upon search of accused’s house at Labasa police found 2 mobiles and cash about $300.

The mobiles were identified by the complainant as hers.

The accused gave sworn evidence. He said his father had given him the Motor Rolla mobile which was found in his father’s taxi. As for the other mobile, he didn’t know how it got in his bag. He also said he took $900 to Labasa. His father gave him $200, $300 was from his account and rest he got in leave pay.

The Prosecution in this case has not shown or investigated fully as to the mobile Motor Rolla. They neither called the father or the complainant’s mother as witness.

Since accused had given an explanation as to the phone. It was upon prosecution to call rebuttal evidence. They did not go any further to rebut the explanation given by the accused. He was on leave and going to Labasa. It’s obvious he will be given money by his father and withdraw his own money and get leave pay. It is only reasonable. But it’s for prosecution to prove other wise which they didn’t.

The only explanation accused could not give is how the Nokia mobile got into his bag. Being in recent possession, it’s for him to explain how he was in possession of a recently stolen property.

I also consider the ill feelings existing between the accused and complainant. This was obvious during the questions and answers of complainant and accused in court during proceedings. In the circumstances, it may be dangerous to convict the accused merely on one item alone. He has given reasonable explanation for the rest which has not been contested by police or checked by them.

I am therefore in doubt if the accused is the person who broke into the house and stole the items mentioned in charge.

The benefit of this suspicion will go in favour of the accused.

He is therefore found not guilty and acquitted.

Dated this on the 27th day of June 2007.

Ajmal Gulab Khan
RESIDENT MAGISTRATE