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House-breaking by night—/lcensed seen in neighbourhood of the house, carryingsomething—Transfer ly accused of certain property, identified as com-plainant's to house of a third party—Presumption of house-breaking andtheft—Impropriety of xcpnraliitg the tiro offerees.
Complainant's house having bci-n broken into in the night ami bags* of arecanuts carried away, the accused were seen going ‘ along the roadleading from that house carrying each a filled gunny bag, and later onthey left the bags in the house of a third party. and such bags wereidentified by complainant as being part of the property stolen that night.
Held, per Monskr. C. .1.—That the correct inference to be drawn fromsuch evidence was that the accused were guilty of house-breaking andtheft, and that the Police Magistrate ought not to have separated thetwo offences and tried the offence of theft summarily.
SILVA v. RANIS.P. C., Galle, 24,035.
facts of the case appear in the judgment of the Chief| -Justice.
Bawa, for appellant.
23rd .March. LS97. Boxser, C.J.—
In this case the Police .Magistrate of Galle has convicted theappellant of theft of some bags of arecanuts. It appears thatsome time in the night of the 16th February the house of thecomplainant was broken into by a hole being made in the wall,and certain bags of arecanuts were carried away, so that it ’ isclear that, on that night, an offence was committed—the offence ofhouse-breaking by night, which is punishable under section 443 ofthe Penal Code. That is an offence triable only by a DistrictCourt-. It is also clear that the offence of theft in a buildingused as a human dwelling was committed on the same night as thehouse-breaking. That is an offence triable by a Police Court, ifthe property stolen does not exceed Rs. 100 in value. It appearsthat- in the present case the property stolen did not exceedRs. 100 in value, and therefore the charge of theft was triable bythe Police Court.
The principal evidence against the appellant is that of two-women, who were originally accused jointly with him. Theysay that on the night in question, about midnight, the appellantand some of the other accused brought to their house certain bagsof arecanuts, which were subsequently found by ’the police there,and which were identified by .the Complainant as being part of the-property stolen that night. Their evidence was confirmed by a-man called Lokuhamy, who says that on the same night—the-
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1897. night of the robbery—he saw the appellant and two of the otherMarch 23. nocused going along the road leading from the complainant’sBon'iek, C.J. house, about four fathoms therefrom, each carrying a filled gunnybag. If that is true, it is quite clear that the appellant took partin the house-breaking. Becent possession of property may beascribed to a receipt of it knowing it to be stolen. But if theevidence is true, the time and place at which the accused wereseen shows that that is not the correct inference to be drawn.The correct inference would be that they were engaged in thishouse-breaking and theft.
In these circumstances, I do not think that the Police Magistrateought to have separated the two offences, which were so inti-mately connected as these offences of house-breaking and theft.It was all one transaction, and it ought not to have been split up.Therefore, I think this case should be tried before the DistrictCourt, and it. is accordingly transferred to that Court for trialwith assessors.
SILVA v. RANIS