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State v Lalagavesi [2011] FJMC 175; Criminal Case 322.2009 (9 September 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 322/09

BETWEEN

THE STATE

AND

SAULA LALAGAVESI

JUDGEMENT

1. The accused is charged with one count of house breaking and larceny and another alternative count of receiving stolen property.
   
2. The statements of offences and the particulars of offences are as follows;
   

Statement of offence

House breaking entering and larceny contrary to section 300 of the Penal Code

Particulars of offence

Saula Lalagavesi with another on the 15th day of June 2009 at Lautoka in the Western Division broke and entered the dwelling house of Praveena Meghji and stole therein assorted jewelleries valued $ 31 650, a cyber digital camera valued $ 1000, a gents wrist watch valued $ 750, a ladies wrist watch valued $ 450, a moisturizing cream valued $ 563 and cash $ 500 to the total value of $ 34,913, the property of Praveena Meghji.

Statement of offence ( Alternative count)

Receiving stolen property contrary to section 313 of the Penal Code.

Particulars of offence

Saula Lalagavesi between the 15th day of June and 30th day of June, 2009 at Lautoka in the Western Division received a pair of 18 karat diamond earring, 1x18 karat diamond bangle, 1x18 karat mangalsutra with diamonds, 1 set pendent, 1 heavy bali, 1 om ring, all to the total value of $ 31,650 knowing the same to have been stolen, the property of Praveena Meghji.

3. The case was taken up for hearing on the 29th March 2011 and on the 09th April 2011. The accused was unrepresented and the Prosecution was conducted by a Police Prosecutor. The Prosecution called 5 witnesses. After the Prosecution case was closed the Court held that there is a case for the accused to reply. The accused gave evidence and two other witnesses were called for the Defence.
   
4. In this case the prosecution has to prove beyond reasonable doubt that the accused with another broke into the house of the Complainant and stole the items or in the alternative that the accused has received the stolen property.
   
5. The Prosecution called the Complainant, Praveena Meghji. She said that on the 15th June 2009 when they were away, she got a call around 2-3 pm from a neighbour and she was told that her house was broken. She said that upon arrival she observed that the entry to the house had been made by breaking a glass in the laundry room. She said that there were blood stains where the glass was broken. The Complainant said that items worth of $34,913 were stolen. Further she said that her neighbours, Rajesh Punja and Gracie had seen a person entering into her house.
   
6. The Complainant said that some time later one of her friends had seen a person wearing the Complainant's stolen Mangal Sutra and diamond bangle in town. Then it was reported to the Police and the Complainant said the Police took her to that girl's house in Verabetia. She said that all her jewellery except the studs were recovered on that day by the Police. She further said that on the following day the Police recovered the studs as well. The Complainant identified the stolen jewellery and marked them from Prosecution Exhibit 1, 2a – 2e.
   
7. The Prosecution witness Mahaweer Yogeshwar Raj gave evidence that he was running a shop at Field 40, Lautoka and some time in June 2009 the accused, who was his neighbour came to his shop and bought some groceries, beer and recharge cards worth of $150 for credit. He said that the accused gave some jewellery to him. However the witness could not specifically tell the Court what jewellery were given to him. The jewellery which were already marked through the Complainant as Prosecution Exhibit 1, 2a – 2e were shown to the witness and the witness said that those were the jewellery given to him by the accused. However it should be noted that I am not convinced about the identification of the jewellery by this witness.
   
8. Be that as it may the witness, Mahaweer Yogeshwar Raj further said that after about one week he sold the items since the accused did not pay him for the items he bought from his shop. The witness said that he sold the items to two persons named Arti and Muni. He said that he sold the diamond studs to Muni for 20 dollars. However he said that she didn't give him the money. The witness said all the other jewellery were sold to Arti for $1000 dollars and that money was also not recovered by him as Arti did not have money at that time.
   
9. The Prosecution called Artika Archana Karan as a witness and she said that she works for a legal firm as a legal secretary. She said on the 11th July 2009 Mahaweer came to her house to sell some jewellery for $2000. She said that before buying them she took them to check whether they are real gold. The witness said that when she came to the town the jewellery shops were closed and then she went to a salon with her sister. The witness further said that her sister was wearing the bangle and mangal sutra and the lady at the salon inquired about the jewellery. She said later the Police came and took the jewellery which were given by Mahaweer. The witness identified the Prosecution Exhibits 1, 2a-2e as the jewellery which were given by Mahaweer.
   
10. Further the witness, Artika said that Exhibit 1 was given to her by one of her cousin named Priya Dharshani alias Muni. The witness said Muni needed money and she bought the studs for 20 dollars from Muni. How ever Detective Inspector Isireli Vana gave evidence that Exhibit 1 was recovered from one Priya. He said when they were searching Artika's house Priya came and gave the studs marked as Exhibit 1.
    
11. The Prosecution did not call the sister of Artika or Muni as witnesses.
    
12. In any event it should be noted that the credibility of the two Prosecution witnesses Mahaweer and Artika was questionable. Although the witness, Mahaweere said that the accused gave all the jewellery for 150 dollars worth of items which were bought from his shop, he could not specifically mention what jewellery were given to him by the accused. Only when the Prosecution showed him the Complainant's jewellery, Mahaweer identified them. Yet I am not convinced about his identification of jewelleries. When a witness is asked to identify a certain item, it is the duty of the prosecution to first elicit a description about the item before showing it to the witness. Unless there is no evidential value in nodding the head when the item is shown. The accused during the cross examination and in his evidence repeatedly denied giving the jewellery pertaining to this case to Mahaweer. Instead the accused suggested that it was some other jewellery which was given to him. In the circumstances a doubt is created whether it was the accused who gave the jewellery which are subject of this case.
    
13. I will now consider whether the Prosecution proved the first count against the accused beyond reasonable doubt. No witness gave evidence as to how the breaking was done. Although the Complainant mentioned names of two witnesses who have seen the accused, they were not called as witnesses in this case. However when a person is found with recent possession of stolen goods the court can draw an inference that such person has stole the items. But in this case no recovery has been done from the accused person.
    
14. It appears that the recoveries have been made from the persons named, Artika and Priya. Further it appears that there had been independent evidence against them than against the accused. But for reasons best known to the Police, the accused has been charged merely on the statement of Mahaweer.
    
15. The Prosecution did not produce any evidence against the accused regarding the alternative count of receiving stolen property as well. In fact the stolen property had been received by Artika and another person according to the Prosecution evidence.
    
16. I am not satisfied about the credibility of the evidence given by the witness Mahaweer. In any event even on the Evidence of Mahaweer I do think that the accused can be convicted for any of the offences he is charged with. Thus I am not satisfied that the prosecution proved any of the offences against the accused beyond reasonable doubt.
    
17. Accordingly I acquit the accused from both counts.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.

09.09.2011