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Present: De Sampayo J.
THE POLICE SERGEANT v. ABEYHAMY.
856—P. C. Ratnapura,18,991.
Penal Code, 8.449—Implements of house-breaking—Screwdriver—
Accused was found in possession of two carpenters* tools, agimlet, and a screwdriver.
Held, that the possession of the implements did not justify aconviction under section 149 of the Penal Code, as they cannot beproperly described as implements of house-breaking.
rJ'HE facts appear from the judgment.
Barthohmeusz, for appellant.
September 21,1921. De Sampayo J.—
The accused was charged under section 449 of the Penal Codewith being found in possession of “ two implements of house-breaking with intent unlawfully to break into any building.”
The Magistrate convicted him and sentenced him to two months’rigorous imprisonment. It seems to me that there is an entireabsence of proof that the two instruments produced are instrumentsof house-breaking^ within the meaning of the section. The policeconstable was called in support , of the prosecution, but instead ofdescribing the instruments to enable the Court to draw the inferencethat they were instruments of house-breaking, he took uponhimself to say that the tools he produced were house-breakinginstruments. The insufficiency of that evidence was apparentlyperceived, and he was recalled later on in the case, but he did notimprove matters. He only then said that one of the tools looked asif it had been recently used for digging, and the other was describedby him as being a steel 4 inches long, and that it can be used as ascrewdriver. The accused described one of the tools as one used forboring holes (I take it the name of it is “ gimlet”) and the other as ascrewdriver. We must in the circumstances reasonably concludethat these were carpenters’ tools. I think, without going further,the accused should have been discharged, as there was no proofof the instruments being house-breaking instruments. But theaccused went further and explained in his evidence that thesethings did not belong to him, but had been left in his house bya carpenter named Simeon Fernando, who with his family hadlodged in his house some time before this occurrence. There is no
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reason to doubt that the carpenter and his family lived in theaccused’s house. Simeon Fernando himself was called, and headmitted the fact, and also claimed the articles as his. One wouldhave thought that this evidence removed any bind of suspicion, ifany was established, against the accused. The Magistrate, how*ever, remarked that these tools were clumsy in malm, and thathe did not think any carpenter would work with them. Theseinstruments have not been sent up, and we are not able to judge ofthe correctness of the observation of the Magistrate, but I amprepared to believe that they were not in good order, and that isnot to be wondered at, seeing that, according to the evidence, thetools were left in the accused’s house the year before. I think theaccused is entitled to be acquitted.
The conviction is set aside. .
The PoliceSergeant c.Abeyhamy
THE POLICE SERGEANT v. ABEYHAMY