State v Raj [2007] FJMC 27; Criminal Case No 793 of 2006 (20 November 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 793 of 2006

STATE

V

SUBHI RAJ s/o Shiu Raj

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 6/11/07
Date of Judgment: 20/11/07

Prosecution: Insp. Livai
Defence: In Person.

JUDGMENT

1. The accused has been charged under S274 (a) (i) of the Penal Code for Larceny by Servant.
   
2. Particulars are on 4th January 2006 being a servant employed by Public Works Department as a mechanic stole one Delco Remy Alternator valued $5000; the property of the said Public Works Department.
   
3. The Prosecution evidence is that the security guard on duty around 4.55pm on 4th January 2006 saw the accused going out of the gate with a bag. He called him and went and searched his bag. He saw it contained an alternator of a caterpillar. The security took the bag and gave it to mechanical supervisor. The supervisor noticed the yellow colour on the alternator and reported it to the police. Accused was charged.
   
4. In his caution interview the accused explained "It is not the property of PWD Workshop. It’s property of Amas Earthworks, Lakena who gave it to me for repair and testing. My tester is broken down so I brought it to work to test it."
   
5. The crucial issue in this case is that of identification of the alternator?
   
6. The supervisor of PWD was the only person who identified the alternator. The security guard and others had no personal knowledge but were told by the supervisor that it’s PWD property. The supervisor was an experienced PWD worker. He said in evidence that by experience whenever a D4 or D6 machine is brought to the garage it’s sprayed with yellow paint. The alternator had faded yellow colour on it so it’s PWD property.
   
7. This was the only means of identification which he used. The accused in cross-examination asked "all caterpillar private or Public Works is sprayed yellow not just PWD? The witness agreed.
   
8. This being a government property it is expected that a more positive identification would have been made. At least the brand name, purchase date, register of record or serial numbers etc. Besides the faded yellow colour on the alternator no other identification was tendered. This witness under cross-examination agreed that all caterpillar owners' private or government spray yellow paint. Therefore, this means of identification is suspect.
   
9. A crucial witness in this case was Aptar Singh who failed to come to court. This court considered him a witness who would help decide the major question in this case in order to do justice. He was called as a witness by court and opportunity given to both parties to question him after his evidence.
   
10. The accused in interview said it was Amras Earthwork Limited’s alternator which he had brought for testing. Aptar Singh is one of the directors of Amras. Initially he had told police the accused used to do private jobs for him. He used to take machines for testing. However, he said the alternator in question did not belong to him and he didn’t give it for testing. He made this statement on 19/2/07.
    
11. On 27th April 2006 Aptar Singh had given a letter stating that he had given alternator to accused for repair works. His evidence therefore was necessary to justly decide this case. The prosecution evidence was conflicting on the issue of identification.
    
12. On oath in court Aptar Singh admitted giving an alternator to accused for repairs. He said he couldn’t identify positively on 19/2/07 when he gave his statement. The alternator he had given the accused was not received back by him at the time he gave evidence in court.
    
13. He said he is not sure if the alternator in court is his. He also said he is not the only person in the garage and there are other workers there too.
    
14. I have considered the whole of the evidence. The burden is on the prosecution to prove beyond reasonable doubt that this was the property of the employer (PWD) stolen by the accused.
    
15. I am not convinced that the prosecution has discharged its burden. The only means of identification was a faded yellow colour on the alternator. There has been conflicting evidence of it's’ identity and alibi given by the accused which has been confirmed.
    
16. I am unable to say beyond reasonable doubt that this was the alternator of PWD which was taken away by the accused. The accused also in evidence told police it was brought to work in the same bag that morning and security on duty then was shown the alternator. The prosecution did not call any evidence to rebut it. The guard on duty in afternoon was not the same as the one in the morning when accused had come to work. It could well be that it was shown to the guard on duty as the accused says. These matters bring reasonable doubt on the guilt of the accused person.
    
17. In the circumstances the accused is found not guilty and acquitted.
    

Dated this 20th Day of November 2007.

Ajmal G Khan
RESIDENT MAGISTRATE