Attorney-General v.Rawther
EnnIs J.
Attorney-General vRawther
( 396 )
mentioned that the law there stated was not a new statement ofthe law, but merely a re-statement of it.
On appeal it was urged that the learned Magistrate had notapplied himself to the real matter for decision in the case, but haddecided on a misapprehension of the authority referred to by him.
I do not propose to discuss the English law on the subject, becausethe Ceylon law supplies sufficiently safe and explicit rules for theguidance of the Courts in arriving at a decision in such a case.
Section 114 of the Ceylon Evidence Ordinance, No. 14 of 1895,says that a Court may presume (illustration A):—
“ That a man who is in possession of stolen goods soon after thetheft is either the thief or has received the goods knowingthem to be stolen, unless he can account for his possession.”
I have underlined the word may, because it cannot be too clearlystated that it is not necessary to make such a presumption in everycase. The status, personality, or demeanour of the accused maybe such as to stay the Court from making any such presumptionin the one case,whereas in the other, with an exactly similar explana-tion, such a presumption may well be drawn. Again, the evidenceled by the prosecution may have disclosed a view of the case whichwould make the drawing of such a presumption inequitable.
The next observation on this section, so far as this case is concernedis in connection with the words “ soon afterThe theft was onNovember 2, the stolen scissors were found in the possession ofthe accused on November 17. Is this So “ soon after ” the theftas to give rise to the presumption 1 It is a question of fact in eachcase which must be weighed with other facts in the case when all theevidence is passed in review before a decision is arrived at. It issufficient to note for the moment that it affords time for the stolenproperty to have passed from hand to hand, even into innocenthands, by normal bargain and sale; there is not that strong pre-sumption that would arise if the goods had been found, for instance,the day afte^ the theft.
Finally, there are the words “ unless he can account for hispossession.” From the point of view of Ceylon law, it is on theinterpretation of these words that the case has come up on appeal.The learned Magistrate has, in effect, said : “ It cannot be disputedthat the explanation given by the accused may reasonably be true,”and also : “ I am not satisfied with the explanation^’ If, by thesecond statement, the learned Magistrate meant that he had asuspicion only that the explanation, was not true, then the decisionto acquit the accused was right. But it has been urged on appealthat the Magistrate meant that the explanation, when weighed bya reasoning process, that is, considered with the other facts in thecase, and having regard to the common course of natural events,human conduct, and business, was not reasonably true. Such a
( 397 )
construction would be in conflict with, the statement which theMagistrate says cannot be disputed. For myself, I cannot helpfeeling that the Magistrate meant that the explanation was quitea possible one considered by itself, but not so when considered withother facts in the case. In considering whether an accused has“ accounted for ” his possession of stolen property, the strength Ofthe presumption to be dispelled must first be ascertained. How“ soon after ” the theft was it found in the accused’s possession ?The presumption gets weaker as time goes by, till the point is reachedwhen no presumption can be drawn. That point in time will varyaccording to the nature of the article. If it be a common thingreadily passing from hand to hand in the everyday business ofhuman life without much thought, such as a pair of scissors, thepoint would soon be reached. In this case the scissors were silverscissors worth Rs. 5, and whether any particular person would belikely innocently to possess such a pair would depend on hisstatus in life, and once again the point of time will vary with thatstatus. To say that the accused has not satisfied the Court that“ he came by. the property honestly” is a vague ground forrejecting an explanation, and it overlooks the main question which,is always—Does the evidence prove beyond a reasonable doubt theguilt of the accused ? The evidence must establish the guilt of theaccused, not his innocence. His innocence is presumed in lawfrom the start of the case, and his guilt must be established beyonda reasonable doubt. What such a reasonable doubt is can begathered.from the definition of “proved” in connection with“ fact ” given in the Evidence Ordinance :—
“ A fact is said to be proved when, after considering the mattersbefore it, the Court either believes it to exist, orconsiders its existence so probable that a prudent manought, under the circumstances of the particular case, toact upon the supposition that it exists.”
If the explanation is so probable, in the circumstances that aprudent man would accept it, then there is a reasonable doubt asto the guilt of the accused, or no presumption from his possessionof the property can safely be made. In the present case the learnedMagistrate in effect says that the explanation given is, on the faceof it, a probable one. Are the circumstances of the case such asto show that the probabilityis “ so ” probable that a prudent manwould accept it.
The learned Magistrate has not told us anything as to the mannerin which the accused gave his evidence, and we do not know howthe demeanour of the witnesses impressed him. As I have indicate: >there is only one final question in every criminal case. Does theevidence establish beyond a reasonable doubt the guilt of theaccused ? And it is upon this question that the importance of the
Ennis J.The
Attorney*General v.Rawther
Ennis J.The
Attorney'General v.Rawlher
( 398 )
word “ evidence ” stands out. According to the Ceylon EvidenceOrdinance, the word ,e evidence/’ for the purpose of that Ordinance,means the statements of witnesses called “ oral evidence/’ andall documents produced for the inspection of the Court calledudocumentary evidence.” But "evidence” for the purpose ofdetermining the guilt of .an accused is far more than this. Itincludes everything which a prudent man would observe, note,and act upon in ascertaining truth. The absence of a document,the manner in which oral testimony is. given, the sincerity of awitness, his carriage, his look, his hesitancy or promptitude, and athousand and one other matters which are neither oral nor docu-mentary evidence. For instance, if the master’s stolen watch isfound in the servant’s pocket, and the servant, accused, say9" I do not know how it got there, some one must have put it there,”he probably will not be believed, but he may speak with suchobvious truth and dignity as to carry conviction. So also, if theservant's stolen watch is found in the master’s pocket, and themaster, accused, says : “ I do not know how it got there, some onemust have put it there,” he probably will be believed, unless hismanner is so evasive and furtive as to leave the truth of his wordsin doubt. The explanation is the same in both cases, the decisionmay well be different. The Court has to consider “ the matters ”before it as shown in the definition of " proved ” already cited.
We are in appeal called upon to say, without the advantage ofhearing and seeing the witnesses and without knowing the Magis-trate’s views, whether a verdict of acquittal should be set aside.We start, therefore, by observing that nothing for or against thetruth of the testimony has been noted as regards the demeanour ofthe witnesses.
* The Magistrate has drawn an inference adverse to the accused,from the fact that he does not know what explanation was madeby the accused to the police at the time of his arrest, he assumesthat the explanation was not satisfactory, or the accused would nothave been charged. No such assumption can be made. The policewill proceed with a case when they think that there is sufficientground for proceeding, just as a Magistrate will issue a summonsunder section 151 of the Criminal Procedure Code when he is ofopinion that there are sufficient grounds for proceeding. Noassumption adverse to the accused' can be drawn from the fact thathe has been charged. Then the Magistrate has commented adverselyon the fact that the accused did call evidence in corroboration ofhis own. He did not call his son or Junaideen. Both these menwere on the list of witnesses for the prosecution. It may be assumedthat if the son were ready to give evidence that would help to provethe guilt of the accused, he would have been called by the prose-cution. With regard to Junaideen the Magistrate tells us that hehas been convicted for retaining some of the rest of the property
stolen, when the scissors were stolen. It is difficult to see how itcould serve the accused to call a convicted thief.
In favour of the accused the Magistrate observes that he doesnot appear to have hindered the police in their search. He producedthe keys when demanded, and no other stolen property was foundin his house. The accused stated that he was a well-to-do man ;that he owned properties which he leased out; and that Junaideenhad taken a sub-lease of one of these properties from a tenant of his.These facts are borne out by a witness for the prosecution, Haniffa,who said that at one time he was a rent collector for the accused,but never collected any rent from Junaideen. As this witness hadhimself been sued by the accused, his evidence can probably berelied upon. The purchase of a pair of scissors worth Rs. 5 by theson of such a man from a person whom he might meet and speak todaily would not be primd facie an unlikely event, and, as the sonlived with the father, anything purchased by the son would be likelyto be found in the father’s house. The fact that ample time elapsed,after the theft and before the discovery of the scissors, for a thiefto have disposed of pieces of the stolen property to ordinarypurchasers and the likelihood of his doing so, supports in somedegree the accused’s story, and the fact that a single item only, outof many stolen, is found in the house of the accused also makesthe story less unlikely.
In view of all these facts, it is not possble on appeal to say thatthe accused should not have been acquitted. I would accordinglydismiss the appeal.
Ennis J.
Attorney -General v.Bawther
De Sampayo J.—
The question which was intended to be settled by this appeal hasbeen fully discussed by my Lord the Chief Justice and my brotherEnnis. I agree with the view expressed by them, and there isnothing which I can usefully add.
Appeal dismissed.