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XAGAPPA CHETTY v. SILVA.
P. C., Ratnapura, 19,778.
House-breaking—Recent possession of goods removed from house broken intb—Presumption of not only theft, but of the manner in which theft was com-mitted—J urisdiction of Police Magistrate.,
Where a house was. broken into and the goods removed therefromwere found soon after in the possession of the accused, and footstepswere traced from behind the house broken into to a place behind theaccused’s house,—
Held, per Bbowne, A.J.—That the accused's recent possession of thegoods was presumptive evidence of not only theft, but. also of theft byhouse-breaking, and that therefore the Police Magistrate could not deal'with the case summarily for theft or dishonest receipt.
'"pHE facts of the case appear in the judgment of Browne, A.J.
H. J. ('. Pereira, for appellant.
Petris, for respondent.
25th February, 1901. Browne, J.—
On the night between the 4th and 5th January last a hole wasmade under the frame of the/ back door of a Chetty’s boutique atTiriiwanaketiya. the door was unbarred, and twenty bags of salt•23-
( SS9C f
and six tins of various oilswere bodily carried away. Tnere n»
February 25.evidence that, therehavingbeen rain that night, footsteps were
Browne,J.found leading frombehindcomplainant's boutique to behind
, accused's boutique, making a new track on the river side of theroad, and that on searching accused’s boutique there was found asmall upper storeyor loftpartitioned from a larger one and
capable of being entered by an aperture two feet square on the levelof its floor, which aperture was at first not discernible owing tothe straw being piled on the larger loft; and that in this smalleiroom were salt bags and oil tins, which, despite absence of trademarks, complainant swore were his property.
The Police Sergeant reported to the Court that accused dis-honestly retained this property, and the Magistrate has convictedthem of this offence. Neither of them apparently has studied thedistinction made by Withers. J.. in Banda v. Henaya, 2 N. L. R. 4,between dishonestly receiving and dishonestly retaining anystolen property: namely that the former arises when the propertyis received, despite knowledge at that time that the theft has beencommitted, and that the latter arises when the knowledge of thetheft comes after an honest and innocent receipt of the property.Indeed, in this case, if the evidence be nil true and the identifi-cation certain, the recent possession is presumptive evidenceof theft rather than of dishonest receiving. But there isno presumption of dishonest retaining made by section 114 ofthe Evidence Ordinance 2 N. L. H. 4:Manila r. Baudirah.
N. L. R. 267; Koch, 31, 38).
But the presumption of theft thence arising may extend evento the manner in which the theft was committed, e.g., of robbery;though, if the violence used in the robbery resulted in the deathof the victim, it would be only evidence of the guilt of murder,but not presumptive evidence thereof. (Field, p. 516, citing QueenEmpress v. Sami, l. L. R. 13, Mad. 432.) Withers, J., in Guna-sekera v. Thegis, 2 N. L. R. 197, said (in a case where accusedwas found in possession of a chair which had been removed froma house where a door had been forced open four months pre-viously), “If an inference is to be drawn from the fact of his“ possession, it is' that he stole it in the commission of house-“ breaking, an offence which the Magistrate was not competent to1 “ try.’’ Lawrie, J., did not concur therein in 4,373, P. C., Panadure(S. C. M. 12th September, 1898), but I consider the Magistrateshould, ere he convicted in this case, have requested the directionsof the Attorney-General; and as the conviction cannot be sus-tained, I set it aside and direct the case to be forwarded tothe Attorney-General.
NAGAPPA CHETTY v. SILVA