Lewis Singho v. Liyanage
1954Present: Sansonl J.A. LEWIS SINGIfO el ah, Appellants, and P, D. P. A.LIYANAGE (S. I., Police),* .RespondentS. C. 738-742—M. C. Colombo South, 55,427
Unlawful possession of house-breaking instruments—Several accused—Possessionof implements by one accused •—Inference of common possession—Penal Code,449.
Where several persons are charged under section 449 of the Penal Code withhaving in their possession without lawful excuse instruments of house-breaking,ovidenco of possession of the implements by one of them is evidence of possessionby each if there can bo no doubt as to their common purpose of using theimplements for house-breaking.
SANSON1 J.—-Lewis Singho v. Liyanage
-^^-PPEALS from a judgment of the Magistrate’s Court, Colombo.South.
E. I). Cosine, with O. M. da Silva, for the 1st accused appellant.
Ian de Zoysa, for the 2nd and 3rd accused appellants.
4th and 5th accused appellants in person.
M.Kanagasunderam, Crown Counsel, for the Attorney-General.
Cur. adv. villi.
August 16, 1954. Sansoni J.—
The five appellants were charged and convicted of having committedan offence under section 449 of the Penal Code, in that they were foundhaving in their possession without lawful excuse instruments of house-breaking, to wit:—a jemmy, a crowbar, a saw, a pair of gloves, fourmasks, three swords, a dagger, a clasp knife, an electric torch and abunch of seventeen keys. The evidence of the Police Officers whoarrested the 1st to 3rd accused at 4 a.m. established that four or fivepersons armed with swords got into car bearing No. Z 8108 near thehouse of the 5th accused. The car drove off. Five Police Officerslater waited in ambush at a point on the High Level Road and whenthis same car approached they stopped it by placing the Police caracross the road. When the occupants of car No. Z 8108 got out, the1st accused who was armed with a sword and dagger, the 2nd accusedwho was armed with a sword and the 3rd accused who was carrying abunch of 17 keys were arrested. Two other occupants ran off but theywere identified as 4th and 5th accused. They were identified by thehead-lights of the Police car and the witnesses say that they were carryingswords. All the accused gave evidence denying that they travelled inthis car or that they were arrested when they were together. Theystated that the various weapons and instruments and other productionswere never in their possession. The learned Magistrate rejected theevidence of the accused and accepted the evidence of the Police Officers.
The only matter urged before me was that none of the articles foundon the persons of the accused were instruments of housebreaking andthey were therefore wrongly convicted. I agree that the swords anddagger found on the 1st and 2nd accused are not instruments of house-breaking ; and they must therefore be acquitted if they are liable onlyfor such weapons as they had on their persons. -The bunch of seventeenkeys bears a neutral character and the onus was on the prosecutionto prove that their possessor had the intention of using them for house-breaking. Such intention can, in my opinion, be established by evidenceof the surrounding circumstances and the circumstances proved in thiscase speak only too eloquently. None of the seventeen keys, I mightmention, was found to fit any almirah in the 3rd accused’s house. One
430Nnvaralnam v. Village Committee of Kandulcara Jhala Kornle
should also consider the objects found on the floor and the seats of thecar—a sword, a jemmy, a crowbar, a saw, four masks, a torch, a claspknife and a pair of gloves. No explanation was offered by the accusedfor the presence of this collection.
But the question still remains whether all these accused can beconvicted of having all these articles in their possession. They cannotif the offence charged is one which renders a person liable only to thoextent of the instruments he himself has in his possession ; but they canif the possession of one or more of them can be held to be possession of allof them. This very point was considered in the case of R. v. Thompson'.Two accused named Thompson and Jones were charged with committingan offence under section 58, 24, 25 Viet. C. 96, which is framed in verysimilar terms to our section 449. The evidence was to the effect thatboth accused were found together, Thompson having on his person acandle and tu'enty lucifer matches while Jones had a crowbar and aknife. Jones pleaded guilty. It was contended for Thompson thata candle and matches were not housebreaking implements, and he couldnot be said to be in possession of the implements found on Jones. Thejury had been directed that if they were of the opinion that both accusedwere together with the same object and for the purpose of housebreaking,Thompson would be guilty. Thompson was convicted. The Court ofCrown Cases Reserved considered, in appeal, whether the possession ofhousebreaking implements by one of two persons for a common objectis the possession of each. Kelly C. B. in delivering the unanimousjudgment of the Court of five judges affirming the conviction said :•—“ The possession of one is the possession of all ”. Archhold (32ndEdition) at page 6G5 cites this decision as still authoritative. Therecan be no question as to the common purpose actuating these accusedwhen they were travelling in the same car-on the night in question withall these instruments lying in it.
For these reasons I dismiss the appeals.
L. A. LEWIS SINGHO et al , Appellants and P. D. P. A. LIYANAGE( S. I. Police), R