Hamced v. Inspector oj Police, Crimes
1967Present: Samerawickrame, J.S. M. S. HAMEED and 2 others, Appellants, andINSPECTOR OF POLICE, CRIMES, RespondentS. C. 77S-780/67—M. C. Panadura, 245Common intention—Applicability of rule in a prosecution of two or more persona forunlawful possession of house-breaking instruments—Penal Code, ss. 32, 449.
"Where, in a prosecution of more than ono person for unlawful possession ofhouse-breaking instruments in contravention of section 449 of the Penal Code,the evidence shows that the instruments were found in the possession.of onlyono of the accused persons, section 32 of the Penal Code relating to commonintention cannot be applied to convict the other accused of the offence charged
96 SAMERAWICKRAME, J.—Hameed t>. Inspector of Police, Crimes
Appeals from a judgment of t-ho Magistrate’s Court, Panadura.
Accused-appellants absent and unrepresented.
Ranjit Gunatilleke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 2, 1967. Samerawickrame, J.—•
The 2nd, 3rd and 4th accused-appellants and one Molmmed Mohideen,who was the 1st accused, were charged with having committed an offencepunishable under Section 449 of the Penal Code read with Section 32 ofthe said Code, in that they were found having in their possession withoutlawful excuse, instruments for house-breaking. All four accused hadbeen convicted and the 2nd, 3rd and 4th accused-appellants have filedpetitions of appeal.
The instruments were found in the possession of the 2nd accused andthey consisted of articles that are commonly used for law-ful purjjoses,though the^y may be capable of being employed for the purposeof house-breaking. In such circumstances, it is incumbent on theprosecution .to prove the intention of the accused to use the instrumentsfor house-breaking.
There are circumstances upon which the learned Magistrate wasentitled to hold that such intent had been proved and I do not thinkthat, sitting in appeal, I can interfere with that finding. The articleswere found in the possession of the 2nd accused-appellant. In facthe uras holding them in his hand. The 2nd accused-appellant was,therefore, guilty of the offence charged and I affirm his conviction and -dismiss the appeal.
The Magistrate has convicted the other accused in reliance on Section32 of the Penal Code. That Section deals with the position where acriminal act is done by several persons in furtherance of the commonintention of all. .There can perhaps be no doubt that tho other accusedshared an intention to commit house-breaking, but it cannot be saidthat they did any criminal act. Section 32 is applicable where severalaccused have jointly done a criminal act. I am, therefore, of the viewthat Section 32 cannot be applied in tin's case to make the other accusedguilty of the offence charged.
I allow the appeals of the 3rd and 4th accused-appellants and set-aside their convictions and the sentences passed on them. Actingin revision, I also set aside the conviction and sentence passed on the1st accused. The sum of Bs. 50/- or any |;>art of it- that has been paidby the 1st- accused will be refunded.
Convictions of 1st, 3rd and 4th accused set aside.
S. M. S. HAMEED and 2 others, Appellants, and INSPECTOR OF POLICE, CRIMES, Respo