State v Sharma [2013] FJMC 74; Criminal Case 13.2010 (7 February 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

Criminal Case No. 13 of 2010

STATE

V

YOGENDAR KANT SHARMA & JITENDRA MANI PILLAY

Sgt Naidu for the prosecution
Mr. Singh R for 1st Accused
2nd Accused in person
Date of Ruling: 07.02.2013

JUDGMENT

1. Both accused were jointly charged with two counts of larceny of cattle as follows:
   

First Count

Statement of Offence(s)

LARCENY OF CATTLE: Contrary to section 275 of the Penal Code Cap 17

Particulars of Offence(s)

YOGENDRA KANT SHARMA and JITENDRA MANI PILLAY, between 1st day of November 2009 and 30th day of December 2009, at Nadi in the Western Division, stole a calf valued at $200.00, the property of ISIMELI DEGEI.

Second Count

Statement of Offence(s)

LARCENY OF CATTLE: Contrary to section 275 of the Penal Code Cap 17

Particulars of Offence(s)

YOGENDRA KANT SHARMA and JITENDRA MANI PILLAY, between 1st day of November 2009 and 30th day of December 2009, at Nadi in the Western Division, stole a calf valued at $200.00, the property of RAMESH CHAND.

2. They pleaded not guilty to the charges. The complainant in count 1 was not present at trial as such both accused were discharged from count 1.
   

EVIDENCE OF THE PROSECUTION

3. The prosecution called a total of 4 witnesses in these proceedings. They are: Ramesh Chand (the complainant) PW1, P C Vishal Kumar (PW2), D/S Setendra Kumar (PW3) and PC Kupta (charging officer) PW4.
   
4. PW1 stated in evidence that he did not see who stole the calf. He later found them at the 2nd Accused's house. He went with the Police to recover the calf.
   
5. PW2 stated in evidence that he interviewed the 1st Accused. He said that 1st Accused admitted transporting the calves but denied stealing. He also charged the 2nd Accused. He told that the 2nd Accused admitted the charge when he made charge statement. The caution interview of the 1st Accused and Charge Statement of the 2nd Accused were tendered by this witness without objection.
   
6. Under cross examination he admitted that he did not put the allegation of calves to the 1st Accused. He interviewed the 1st Accused in English. He said that the 1st Accused told him that he transported the cows on the request of the 2nd Accused.
   
7. PW3 stated in evidence that he interviewed the 2nd Accused. He stated that the 2nd Accused admitted the allegation of theft and told that the 1st Accused gave the calves to him. He tendered the record of the caution interview of the 2nd Accused without objection.
   
8. PW4 stated in evidence that interviewed the 1st Accused. He told that the 1st Accused denied the charge under caution interview. Record of the caution interview of the 1st Accused was tendered without objection.
   

DEFENCE CASE

9. Both accused opted not to offer any evidence for defence. They chose to remain silent exercising their right to remain silent under common law.
   

The Analysis

10. Both Accused have been jointly charged with one count of larceny of cattle.
    
11. There is no direct evidence who stole the calves. The prosecution adduced evidence that the stolen calves were recovered from the 2nd Accused. The 2nd Accused had admitted theft during the caution interview. During the caution interview 2nd Accused implicated that the 1st Accused gave the calves to him.
    
12. The 1st Accused has been arrested upon the statement of the 2nd Accused. The 1st Accused has denied the allegation of theft under caution interview.
    
13. Can the statement made by the 2nd Accused that "the 1st Accused gave the calves to me" be used against the 1st Accused? It is fundamental rule of evidence that statement made by one defendant either to the police or to others (other than statements, whether in the presence or absence of co-defendant, made in the course and pursuance of a joint criminal enterprise to which the co-defendant was a party, see post, s 1399) are not evidence against the co-defendant either expressly or by implication adopts the statements and thereby makes them his own: [Archbold paragraph 1395 on page 907].
    
14. Hon. Salesi Temo, Acting Judge (as then he was) in the case of State v Nagalu [2010] FJHC 152; HAC 122.2008S (20 April 2010) in the summing up at paragraph 17 stated that:
    

"17. Furthermore, in this case, there are four accused on trial. Each of the accused is entitled to be tried on the evidence that is admissible against him. This means you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible in this case against all accused. However, regarding their police caution interview statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused person's police caution interview statement, you must totally disregard what the accused said about his co-accused on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime" (Emphasis mine).

15. The 1st accused had admitted that he loaded the calves into his van Registration No. FA 677 on the request of the 2nd accused.
    
16. The caution interview of the 2nd Accused was tendered by the prosecution without objection wherein the 2nd Accused had stated the 1st Accused gave the calf. I am guided by the case authority of Nagalu (supra).
    
17. The caution interview of the 1st Accused was also tendered without objection wherein the 1st Accused had stated that he transported the cows on the request of the 2nd Accused. The prosecution relied on the caution interview of the 1st Accused hence it must be considered as evidence of the prosecution.
    
18. I am guided by the case authority of Nagalu (supra). I therefore disregard what the 2nd accused said in his caution interview about the 1st Accused. There has been no other evidence against the 1st Accused. I therefore find the 1st Accused not guilty to the charge of larceny of cattle. I acquit him accordingly.
    
19. The stolen calf was recovered from the custody of the 2nd Accused immediately after the commission of the offence. He offered no reasonable explanation as to how he came by possession of the stolen calf. In the absence of any reasonable explanation by the 2nd Accused court may infer he stole it. I therefore find the 2nd Accused guilty to the charge of larceny of cattle contrary to section 275 of the Penal Code.
    

Conclusion

1. I find the 1st Accused not guilty to the charge of larceny of cattle contrary to section 275 of the Penal Code. I acquit him accordingly.
   
2. I find the 2nd Accused guilty to the charge of larceny of cattle contrary to section 275 of the Penal Code. I convict him accordingly.
   

M H Mohamed Ajmeeer
Resident Magistrate

Dated at Nadi this 07th day of February, 2013