MOSELEY J.—Dias v. Suppiah.
1940Present : Moseley J.
DIAS v. SUPPIAH.884—M. C. Mallakam, 19J202.
Found, in a building or enclosure—Failing to give a satisfactory account ofhimself—Burden of proof—Penal Code, s. 4S0 (Cap. IS).
Where a person Is charged tinder section 450 of the Penal Code withhaving been found in a certain compound and failing to give a
satisfactory account of himself,—
Held, that the burden is on the prosecution to prove that the accusedfailed to give a satisfactory account of his presence.
Kump v. Banda (25 N. L. R. 402) referred to.
^PPEAL from a conviction bv the Magistrate of Mallakam.
T.K. Curtis, for accused, appellant.
Nihal Gunasekera. C.C.. for complainant, respondent.
Cur. adv. vult.
February 21, 1940. Mossley J.—
The appellant was charged with having been found in a certaincompound and failing to give a satisfactory account of himself, an offencepunishable under section 450 of the Penal Code. I would, observe, inpassing, that the complaint was filed on December 14, 1938, the trialfixed for March 7, 1939, and it was not until November 14, 1939, aftermany adjournments that the accused was convicted and sentenced tothree months’ rigorous imprisonment. Two adjournments, each of amonth or more, were granted on the ground that the prosecution was notready, three others on account of the absence of a prosecution witness.Such delays must meet with strong disapproval and these comments aremade in the hope that efforts will be made to avoid them in future.
The main ground of appeal is that the appellant gave to the Court areasonable explanation of his presence on the premises, an explanationwhich, in the absence of contradiction by the prosecution, should havebeen accepted. If the case depended upon the explanation which wasgiven by the appellant to the trial Court, I should be inclined to agree .with his contention and would, to put it no higher, give the appellant thebenefit of the doubt.
But it seems to me that the prosecution has failed to prove a primafacie case against the appellant. There are two' ingredients of theoffence, viz., that the accused (1) was found in. the compound; and(2) that he failed to give a satisfactory account of himself. I find that ina similar English enactment the onus is placed upon an accused person to‘ account to the satisfaction of the Court before whom he is brought forbeing found upon such premises ”. Presumably in such a case, theprosecution would merely have to prove that the accused was found uponthe premises, leaving it to him to make his defence in terms of the section.
MOSELEY J.—Dias v. Suppiah.
As however I have indicated above, section 450 of the Penal Codeappears to me to cast the burden upon the prosecution of proving that anaccused person failed to give a satisfactory account of himself, that is tosay, as held by Bertram C.J. in Kurup v. Banda,1 a satisfactory accountof his presence at the place. In this case the prosecution does not appearto have made any attempt to do so and has therefore, in my opinion,failed to prove a prime, facie case against the appellant. I would therefore,allow the appeal. Conviction and sentence are set aside.
1 26 N. L. R. p. 402.
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DIAS v. SUPPIAH