Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Kumari [2016] FJMC 200; Criminal Case 932.2013 (5 October 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 932/13

STATE

-v-

SESHLI KUMARI

JUDGEMENT

1] The accused is charged with the following offence.

THEFT: Contrary to Section 291(1)) of the Crimes Decree No. 44 of 2009

Particulars of Offence

SESHLI KUMARI on the 30th day of January 2013 at Suva in the Central Division, dishonestly appropriated (stole) Gold Jewelleries worth $3,000.00 the property of the Joy Immanuel

The accused pleaded not guilty to the charge and the trial proper was conducted since 4^th of September 2015.

2] In 2012 the complainant was in New Zealand and her husband with 2 children was at home. The accused was their housemaid during that time.

3] When the complainant returned home in 2013 she checked her jewelleries as she found some items were at unusual places. She found at that time that some of her jewelleries were missing. The accused has stopped coming to her house at that time due to various reasons given by the accused to the complainant. The complainant then called accused to search the missing jewelleries as the accused used to clean the house. However the jewelleries were not found.

4] On 30/1/2013 PW2, the Investigating Officer received information from the accused’s daughter about some stolen property. In pursue of that information he recovered a box and a bangle from the accused’ house. The box and the bangle marked as PEX1 and PEX2 were identified by the complainant as her property. In the evidence however it is not clear whether the box had been identified as the box in which the missing jewelleries were kept. The complainant at one time in her cross examination says that it’s a lunch box given by her landlord. The daughter of the accused was not called as a witness.

5] Prosecution Witness 3 was a jewellery businessman. He said that a person by the name of Seshli (a name similar to the accused’s name) had come for a jewellery trade in business. According to him she had come on 20th December 2012 to trade in a mangal sutra (a jewellery). He cannot identify the accused. However he says that the jewellery she brought was not a gold chain but a mangal sutra. As they did not do trade in business the customer opted to accept money for that.

6] The case that the Prosecution needs to present to this court is that the accused has stolen the jewelleries which were kept inside the box which was recovered from the accused house. The Prosecution case depends on circumstantial evidence.

In evaluation of evidence following observations were made:

1. The dates on which the offence is alleged to have committed are inconsistent in evidence. The charge sheet states the date as 30/1/2013. However the complainant was out of the country in 2012 as she says. Her position is that the offence had been committed during that period. PW3 says that a person by the name of Seshli came with jewellery on 20/12/2012.
2. The complainant says that uncle of the complainant also used to come to her home during day time when she was not at home. It seems that uncle is the father of the accused. Therefore the complainant says “between 2 I cannot say who actually picked it up....”
3. The complainant said in evidence that the box in which the jewelleries were kept is a red one. The box which was produced in evidence is a green colour one. The complainant has not confirmed the identity of the box while giving evidence.

7] In this case there is no direct evidence for theft. From this circumstantial evidence an inference cannot be drawn that the accused committed this offence due to the inconsistencies mentioned above. These inconsistencies go to the root of the case and shake the credibility of prosecution evidence. Accordingly a reasonable doubt has been created.

8] For the reasons adduced above I conclude that the Prosecution has not proved the charge beyond reasonable doubt. Accordingly the accused is acquitted.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

5/10/2016