Stephen v. Inspector of Police, Fort
1966Present: Sansoni, C.J.
G. W. STEPHEN, Appellant, and INSPECTOR OP POLICE,FORT, Respondent
S. C. 626166—J. M. C. Colombo, 32881
Offence of assisting in disposing oj stolen property—Quantum of emdence—Alternativecounts in a charge—Mode of giving verdict—Penal Code, ss. 394, 396.
In a prosecution under section 390 of the Penal Codo for voluntarily assistingin disposing of stolen property, there must be evidence that there was anotherperson whom the accused assisted. Neither the thief nor the receiver of stolenproperty can be charged under section 396.
When a verdict of guilt is given on one of two alternative counts of retainingstolen property and disposing of stolen property, there should be no verdict onthe other alternative count.
A. PPEAL from a judgment of the Joint Magistrate’s Court, Colombo.Neville Wijeratne, for Accused-Appellant.
Aloy N. Ratnaydke, Crown Counsel, for Attorney-General.
Cur. udv. tmil.
SAX.33NT, C.J.—S'-sp’izn v. Inipzslor oj Police, Fjrt
August 12, 1966. Sansoni, C.J.—
The accused-appellant was charged on four counts :
that ho did commit house-breaking by day in order to commit
theft, by entering the office of the Indian Hume Pipe Companyin Colombo (s. 440, Penal Code),
that lie did commit theft in the said office of 23 brass bushes and
nuts (s. 3G9, Penal Code),
that ho did dishonestly retain stolen property, to wit: 7 brass
bushes, knowing or having reason to believe the same to bestolen property (s. 394, Penal Code),
4) in the alternative to count 3, that he did voluntarily dispose ofstolen property, to wit : 7 brass bushes, knowing or havingreason to believe the same to be stolen property (s. 396, PenalCode).
The accused had been working for the Indian Iiume Pipe Companyfor man}' years. The articles in question had been kept in a safe in theoffice of that Company, and according to the evidence they were in thatsafe on 10th July, 1965. When the safe was opened on 13th July, theywere found to be missing.
The Magistrate has found that on 11th July the accused sold 7 brasstmshes, which were part of the stolen articles, to tho witness Sellappah.He convicted the accused on count 4 and acquitted him on the other threecounts.
Two points of law have been raised in appeal. The first is that there isno such offence as voluntarily disposing of stolen property. The offenceis, of course, voluntarily assisting in concealing or disposing of or makingaway with property which the accused knows or has reason to believe tobe stolen property (s. 396). *The first point is therefore a good one, and1 hold that the charge set out in count 4 discloses no offence.
The second point taken is connected with the first, and is supportedby the facts as found by the Magistrate. There is no evidence in thiscase that any other person apart from the accused had possession of thesestolen articles before they were sold to the witness Sellappah. Since theoffence consists in assisting somebody else in concealing or disposing ofproperty, there must be evidence that there was another whom theaccused assisted ; an accused cannot assist himself, so far as this offenceis concerned. Hence it has been held that neither the thief nor thereceiver of stolen property can be charged under section 396. See RamBharosey v. State 1.
On the evidence it seems to me that the Magistrate might well haveconvicted the accused under count 3 of having dishonestly retained partof the stolen property, but he has acquitted him although he has givenno reasons for doing so. There is no appeal by the Attorney-Generalagainst such acquittal. It is therefore not open to me to convert theverdict of acquittal into one of conviction. The proper course for the1 A. I. R. (1952) Allahabad 481.
SIKIMAXK .J — Moos,t v. Amir
Magistrate to have followed in respect of both these alternative countswas not to give a verdict on count 3 since count 4 is alternative to count 3.I would invite attention to the case of R. v. Seymour 1 which held that whena verdict of guilt is given on one of two alternative counts of stealing andreceiving, there should be no verdict on the other alternative count.So in this case, if the Magistrate had refrained from finding the accused notguilty under count 3 it would have been open to this court to find himguilty on count 3 on the evidence led, even after acquitting him oncount 4.
In the result this appeal must be allowed and the accused acquittedon count 4 also.
G. W. STEPHEN, Appellant, and INSPECTOR OF POLICE FORT, Respondent