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State v Kumar [2013] FJMC 287; Criminal Case 787.2008 (1 August 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON

NADI CRIMINAL CASE NO. 787 OF 2008

BETWEEN:

STATE

AND:

KISHORE KUMAR &
VENKAT PATI RAJU

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date Of Judgment : Thursday 01 August 2013

Appearances
For The State : WPC Ana / Cpl. Francis
For Accused 1 : Ms. Doge, Janend Sharma Lawyers, Nadi
For Accused 2 : Ms. Nunume, Babu Singh & Associates, Nadi

JUDGMENT

Background

1. On 23 June 2008, both the Accused were jointly charged with one count of Larceny by Servant. The charge read as follows:-
   

Statement Of Offence

LARCENY BY SERVANT: Contrary to Section 274 (a) of the Penal Code, Act 17.

Particulars Of Offence

KISHORE KUMAR s/o Deo Narayan and VENKAT PATI RAJU s/o Surya Narayan Raju, on the 18th day of June 2008, at Nadi in the Western Division, whilst employed as House man and Steward respectively, stole 1 x 4 liter pure New Zealand ghee valued at $34-28, 2 x 4 liter orange juice valued at $10-80 and 2 x 4 liter canola oil valued at $28.00, all to the total value of $73.08, the property of Sheraton Fiji Resort.

2. The matter proceeded to trial. At the close of Prosecution's case, Defence made an application for no case to answer. But court found a case to answer for both Accused.

Evidence of Prosecution

3. The Prosecution produced seven witnesses namely Peni Vuniwai, security officer (PW1), Lazams (PW2), Jale Makata (PW3), Ajay Kumar (PW4), Sgt. Amol Prasad, PC Opeti (PW6) and Cpl. Seruvi (PW7).

The Prosecution also exhibited the following:-

(1) P/Exhibit 1 - 2 x 4L Orange Juice
(2) P/Exhibit 2 - 1 x 4L NZ Ghee
(3) P/Exhibit 3 - 2 x 4L Canola oil
(4) P/Exhibit 4 - Caution Interview of Kishore Kumar
(5) P/Exhibit 5 - Caution Interview of Venkat Raju
(6) P/Exhibit 6(a) - Charge Statement of the Accused 1
(7) P/Exhibit 6(b) - Charge Statement of the Accused 2

4. The summary of evidence maybe stated in my analysis shortly.
   

Evidence of the Defence

5. First Accused (Kishore Kumar) gave sworn evidence after choosing to give sworn evidence. He was not cross examined by the Prosecution. The second Accused (Venkat Pati Raju) did not give evidence. He chose to remain silent.

6. The first Accused in evidence stated that:-

(I). At 11:00pm on 17/06/2008 he worked for Westin Resort as a Houseman.

(II). At around 2:00 or 2:10 in the morning he was at Sheraton restaurant. Raju came to him at Ocean Terrance Restaurant and asked him if he could help him to take out the rubbish to the rubbish bin. Raju asked him to take the rubbish trolley to the rubbish dump.

(III). He then went to the main kitchen door where the rubbish trolley was and pushed that trolley to that area. In that trolley there are some plastic bags and some cartons.

(IV). When they were pushing the trolley, came a intersection towards Coco Palm and Bula Bistro. Raju went to Bula Bistro to put some working gears in there and pushed the trolley to the rubbish dump. He left the trolley there and came back.

(V). When he came back to the potter area, he saw Malimali, potter and Peni Vuniwai, the security talking to each other.

(VI). Thereafter he was called by the security for questioning and asked if he knew anything about the 1 gallon ghee, 2 bottles juice and 2 bottles oil. He said he didn't know anything about it.

(VII). There is a camera in the main kitchen dock, there was also a camera in the intersection between Coco Palm and Bula Bistro. There is also a camera behind Engineering Section behind a small store room for housekeeping just near the rubbish dump there was also a security camera there.

(VIII). Raju was working in the steward department. He and Raju are not friends but team work is a policy of the hotel.

Analysis

7. Both the Accused have been jointly charged with one count of larceny by servant. To establish this charge the Prosecution must prove the following three elements:-

(1). Both the Accused;

(2). Being servants of Westin;

(3). Stole the items mentioned in the charge belonging to or in the possession of

their employed namely Westin.

8. Both the Accused have been identified by name and recognition. The first element of the charge is not in dispute. Therefore it is not necessary to discuss the first element in this analysis.

9. The second element is that both Accused were servants of Sheraton Fiji Resort/Westin. First Accused in his caution statement and in his evidence stated that he worked for Westin at that time. The record of the caution interview of the 1st Accused was tendered and marked without objection as P/Exhibit 4 and the 2nd Accused's as P/Exhibit 5. Both Accused during the caution interview had admitted that they were employed by Westin/Sheraton. PW1 in evidence stated that the 2nd Accused was Housemate employed by Westin, its parent company is Tavua. Therefore there has been sufficient evidence to show both the Accused were servants of Westin/Sheraton of which parent company is Tavua.

10. The third element of the charge is that they stole the items mentioned in the charge that belonged to their employer.

11. PW1 in evidence stated that:-

"After 2am I was smoking in the smoking area I saw Raju coming. I was sitting. I was smoking 'suku' (Fijian tobacco) the Bula Restaurant was at my back, he became peeped inside looking around then I knew that he wanted to do something. So I left that place, I went to a dark place at the car-park to see what he will do. After that I saw him going back to the place he came from, at the moment I saw Kishore pushing a trolley, and inside the trolley was a carton. Raju picked up the carton and they went straight to the car which was parked in the entrance between coconut palm and the Bula Restaurant, that's why Raju put the carton in the restaurant and not in the car, he was taking it to the red car. He knew that someone was looking at him and when I came to find him he was not there. I came and waited at the lobby beside his car. When I crossed the lobby I went straight to the kids club, the red car was not there. I looked for the car and informed all the security officers in Denarau if they saw that red car somewhere ... when the red car left the parking area where it was parked before then it was parked somewhere else facing the road going to Westin. I asked the Controller that whose car is CK288, they told me it was Raju's. I asked all the security officers to look for Raju and Raju was nowhere to be found. When they opened it, the carton I saw on the trolley I saw inside the boot of the car. We told Raju to take out, Raju begged me not to report the matter, because he is earning $7-00 an hour. I told him I can't,because I 'm earning $1-90 an hour. I told him why he should steal because he is earning more than me. Then I reported the matter to the In-house Supervisor".

12. PW2 in evidence stated as follows:-

"On 18/06/2008 he decided to check the vehicle upon the request of the PW1. Raju was sleeping inside the car in driver's seat. When told to open the boot Raju told he had left the key. Then walked few minutes, came back and told he had got the key. When Raju open the boot I found 2 x 4L orange juice, 2 x 4L canola oil and 1 x gallon of ghee".

13. PW2 identified these items in court but told the colour of the orange juice had changed.

14. In cross examination PW2 told all items were inside the carton. Second time the car was parked in insufficient light.

15. PW3 in evidence stated that on that day when told Raju to open the boot he (Raju) said he didn't have the key. Raju walked few yards and came back and opened the boot. When open the boot he saw 2 canola oil bottles, 2 bottles of orange juice and a bottle of ghee. He identified those items in court when shown to him. PW2 also told that when asked about the things Raju initially denied but later he (Raju) admitted that it was from the hotel cooler. He further told that Raju apologized to him but he couldn't do anything since the report came from contractor security. He said Kishore was working for Sheraton.

16. On that day Kishore was pushing trolley with a carton in it. Raju picked the carton and went straight to the car which was parked in the entrance between coconut palm and the Bula Restaurant. That car belonged to Raju. He was sleeping in the car when PW1 and PW2 requested to open the boot to check. When open the boot PW1 found the same carton which was in the trolley Raju was pushing and therein they found the items mentioned in the charge. These items were marked and produced as P/Exhibit 1, P/Exhibit 3. Raju had admitted to PW1 and PW2 that he brought them from hotel cooler.

17. First Accused in evidence stated he helped Raju (2nd Accused) by pushing the trolley to the garbage dump to dispose of garbage. He told team work is the policy of the hotel. If he had really helped Raju dispose of garbage, why he brought the trolley back to the kitchen area when he saw some around. First Accused also told that Raju and he are not friends. Both of them are working together. They know each other at least as workmates. During caution interview when asked why did you meet Venkat Pati Raju at that place? He (A1) answered "He was working and I ws sitting down". He has answered the question in an evasive manner. The first Accused has given coached evidence. I therefore cannot accept his evidence.

18. The items had been recovered from the boot of second Accused's car. He did not offer any explanation as to how it came into his car. When PW1 told to open the boot, he said he didn't have the key. Then he walked down few yards and came back he has got the key. All this suggests his guilty mind.

19. Both the Accused had acted in concert of a common intention. There is sufficient evidence that the items belonged to Sheraton. Tavua is the parent company of Westin and Sheraton. Therefore Tavua is the common employer for both the Accused. Therefore there has been sufficient evidence that both of them stole the chattel belonging to or in the possession of their employer.

20. For the foregoing reasons I am satisfied beyond reasonable doubt that the Prosecution has proven each element of the charge. I find both Accused guilty to the charge of Larceny by Servant contrary to Section 274(a) of the Penal Code.

............................................................
M. H. Mohamed Ajmeer
Resident Magistrate