State v Kumar [2010] FJMC 95; Criminal Case 167 of 2010 (28 July 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 167 of 2010

STATE

V

ARVIND KUMAR

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : Inspector Amelia
Accused : Present

Judgment

Introduction

The accused is charged with Theft, Contrary to 291 (1) of the Crimes Decree 2009.

The particulars of the offence is that Arvind Kumar between 20th day of January 2010 to 17th day of Februray 2010 at Lakena Irrigation, Nausori in the Central Division stole 1500 plants of Dalo the property of Binesh Chand.

The onus of proving the charge is on the prosecution. It is for the prosecution to prove the following elements of the offence the accused is charged with:

(i). the accused – (identity),

(ii). Between 20th January 2010 to 17th February 2010,

(iii) dishonestly appropriated 1500 plants of dalo,

(iv). belonging to Binesh Chand,

(v) the accused at the time of taking the 1500 plants of dalo intended to permanently deprive the owner thereof

The Evidence – Prosecution

PW – 1 - Binesh Chand. Took oath on Ramayan in English. In examination in chief he told the court as follows: "Residing at Davuilvu, farmer. 4 years in Davuilevu. On 20/1/10 at 12pm went to farm in Buiduna, Nausori which is 5 acres. Also have taro and Cassava. Have 3700+ plants. 17th February 2010 took 6 labourers to farm and found some dalo missing. Most of the dalo was missing.

Went to neighbor. He told me what happened. Mr Narayan was the witness. Went to him. He saw the person in my farm. Was in my farm. Mr Narayan is my neighbor. 1500+ plants were stolen valued at $1000+. Narayan told me that Arvin stole it. I know Arvin is my farm neighbor. Plant was 7 months matured. I came to Nausori police station. I am the owner of the dalo."

In cross examination PW-1 told the court "my witness saw the accused in the farm."

In re-examination PW-1 stated that "dalo was stolen between 17th February 2010 and 20th January 2010."

PW-2 was Narayan Prasad. He took oath on Ramayan in Hindi. In examination in chief he told the court as follows: "reside in Manoca, am a farmer. In Manoca for 6 years. Recall events 20/1/10 to 17/2/10. Know Arvind Kumar. Lives in Manoca. 1km from me. Know Arvind Kumar for 3 years. Arvind Kumar is a farmer. I know the farm location. I am a farmer. Our farms are 1km apart. I know Binesh Chand. Arvind Kumar and Binesh Chands farm are next to each other.

I saw Arvind Kumar in Binesh Chands farm. I saw dalo plamts in his hands. He was pulling it and he said he will plant. Initially I saw from 300mtres. I went close to him. I asked him why he was pulling the dalo. Dalo belonged to Binesh. It was fine weather. No animosity with Arvind Kumar. Arvind Kumar did not say anything else. I recognize Arvind Kumar is in Court today." Witness then pointed to the accused in accused box.

In cross examination PW-2 told the court "I saw the accused pull the dalo. Told the owner the same day. I only saw the dalo tops in accused's hands.

In re-examination PW-2 stated that "I did not go to the farm. I also plant dalo. Plants looked matured. Accused was in the end of the farm. Did not see anyone else."

PW-3 was Kuldip Sami. He took oath on Ramayan in Hindi. In examination in chief he told the court as follows: "7 years in Lakena. Know Arvind Kumar is my neighbor. 5 chain away from me (1 block away). Recall January 2010 events. I saw Arvind Kumar at home. I saw a white van recall number CT352. Vehicle at Arvind Kumars house. Accused was at home loading something in a sack. I saw from my home. I did not see what was inside the sack.

I am a farmer. Plant all types of vegetables. I plant dalo. 8000 plants. For sale. Bull carries the dalo. Many farmers use similar way. Dalo is packed in sacks. Sack looked similar to dalo in a sack. I saw him loading I donot know where he got it from. He went past my house. Know Narayan saw him the same day. Met him in the farm. Had conversation with Narayan. He told me Arvind stole dalo. Arvind Kumar is in Court today." Witness then pointed to the accused in accused box.

In cross examination PW-3 told the court "looked like dalo. When I saw working in my farm Narayan told me accused was taking dalo. I did not see accused taking dalo. Mot my job to report."

In re-examination PW-3 told the Court " no animosity with a ccused."

PW-4 was Constable Avinesh Maharaj. In EIC he told the Court "investigating officer of the case. Recall attending to report of dalo theft. Complainant came to station to report theft of dalo from farm. He had 2 witnesses who saw the accused take dalo. Kuldip gave information that Narayan saw accused uproot the dalo. Complainant confirmed with Narayan. Narayan confirmed uprooting of dalo. Kuldip saw accused load the dalo in a vehicle. Vehicle owner not known. Did not get particulars of the vehicle. Vehicle number CT 352. LTA extract owner Arvin R Dutt. Visited the farm and CSI team photographed the scene.

5th March 2010 interviewed the accused in crime office on allegation of dalo theft. Accused signed and I signed. Accused denied the allegation." Caution interview – PE-1.

There was no cross examination and re-examination of PW-4.

The charge sheet and the charge statement were tendered by consent.

The Court at the conclusion of the prosecution case ruled the accused had a case to answer and the options were explained to the accused.

The accused chose to give sworn evidence

Defence case

Accused told the Court that "he was just blamed. Time was being wasted. Someone else stole the dalo and the blame came on him."

In cross-examination he said "he has no arguments or animosity with neighbors."

There was no re-examination.

Analysis of Evidence

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Prosecution this case called 4 witnesses. Pw-1 was the owner of the farm from which the dalo was stolen. Pw-2 was the person who gave evidence that he saw the accused take dalo from the complainant's farm. Pw-3 gave evidence that he saw the accused load the dalo in a van. PW-4 was the investigating officer and he caution interviewed the accused.

The accused gave sworn interview.

The Court has scrutinsed all the evidence that was tendered in Court. The Court noted the demeanor of all the witnesses. The Court in this case believes the prosecution witnesses. Pw-2 saw the accused in the complainants farm. He knows the accused well as they are neighbours. He saw the accused in broad daylight and talked to the accused. They do not have any animosity and Pw-2 has no reason to lie.

The Court does not believe the accused he is not truthful when he asked initially in the caution interview in question 17 he asked what he farmed he stated he did vegetable farming which was "pumpkin, cucumber, baigan, bean, boda, bhindi, french bean." Later he told in the caution interview he also planted dalo and was taking his own dalo. He also stated in the caution interview that he did not transport any dalo but later stated he transported his own dalo.

The Prosecution witnesses were clear and truthful. The accused was evasive and not telling the truth. The court believes the prosecution witnesses. The Court is satisfied beyond reasonable doubt on the evidence tendered by the prosecution that the accused committed the offence that he is charged with.

The court finds the accused guilty of the offence that he is charged with. The accused is convicted accordingly.

Chaitanya Lakshman
RESIDENT MAGISTRATE

NAUSORI
28/07/10