i 138 )
Present: Jayewardene A.J.
THE KING v. LEON ei al.
58—D. C. (Crim.) Kalutara 4>245.
Theft—Removal of bull for temporary use—Dishonestly.
The accused took a bull belonging to complainant, used it in acart belonging to first accused to go to another village, but theyintended to return the bull, and had no intention of depriving theowner of it permanently.
Held, that accused had committed theft.
rJ^HE facts are fully set out in the judgment.
Soertsz (with him Sri Nissanka), for first accused, appellant.
J.S. Jayewardene, for second accused, appellant.
Brito MvUunayagam C.C., for complainant, respondent.
August 21 1923. Jayewardene A.J.—
In this case the accused have been convicted of the theft of abull under sections 367 and 368 of the Penal Code. I have nodoubt that the accused removed the bull in question and used it infirst accused’s hackery, knowing very well that it did not belong tothe second accused. I have, however, come to the conclusionthat they took the bull to go to Mahebellana on a visit tothe secondaccused’s sister and that they intended to return the bull, and hadno intention of depriving the owner of it permanently. I amcompelled to adopt this view as a result of the learned DistrictJudge’s acceptance of the evidence of all the witnesses for the Crown,among whom were one Don Bastian Kanangara and' his carterJuanis who was arrested along with these accused, but was laterreleased. Kanangara who seems to be a man of respectabilitysays that the accused on their return from Mahebellana in a hackeryto which the stolen bull was tied asked him for a bull in exchange,saying that the bull they were using would not go on. They saidthe bull belonged to Aron Mahatmaya, a brother of the secondaccused, and the man who owned the garden where the bull inquestion was tethered. With some reluctance he consented to giveone of his bulls, but sent his carter, Juaius, to drive it, as his bull wasnot a quiet one. Kanangara asked the accused to tie their bullto the fence. The two accused were well known to Kanangara.The accused started back for home in the hackery, Juanis drivingKanang&ra’s bull, and left their bull tied to the fence in Kanangara’s
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garden. At Pallixnankada the party was arrested by tho police.Tn view of this evidence, it seems to me impossible to hold that theaccused intended to steal the animal and deprive the owner of itpermanently. Their conduct in going to Kanangara who knewthem, their statements to him, and their leaving the stolen bull atKan&ngara’s, go to show that they were not acting as thieves.But, under our law, it is not necessary to constitute the offence oftheft that the acoused should have the intention of permanentlydepriving the owner of his property (Ponnusamy v. Mvitu Velu1).Temporary deprivation, if dishonest, is sufficient. In this case theaccused acted “dishonestly ” according to the definition of the term“ dishonestly ” in the Penal Code, for they removed and retainedthe animal wrongfully, although it may be for a temporary purpose. -In the circumstances the convictions are right, but I do notthink that this is a case in which a sentence of imprisonment shouldbe imposed. I sentence each of the accused to pay a fine of Rs. 25,or in default to undergo two weeks’ rigorous imprisonment. Withthese alterations the convictions are affirmed.
Jayewab-DENE A. J.
The Kindr. Leon