Sunil v. The Attorney-General (Dheeraratne, J.)
ALAGARATNAM AND OTHERS
THE REPUBLIC OF SRI LANKA
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND BANDARANAYAKE, J.
C. A. 285-87/81 -M. C. BANDARAWELA 30913.
OCTOBER 15, 1985.
Criminal Law – Theft, s. 370 of the Penal Code – Joint possession – Commonintention – Conviction for theft and retention of stolen property.
Where the facts were that the three accused were found in a lorry loaded with stolentea. driven by the 1 st accused soon after some unidentified men had been seen loadingthe lorry with the stolen tea in bags.
. Although it is possible that it was not the accused but others who had loaded thetea into the lorry and.therefore that the accused had not dishonestly 'moved' the teastill by applying the provisions of s. 114 of the Evidence Ordinance in the absence of anyexplanation they could be found guilty of theft.
Sri Lanka Law Reports
 1 Sri L. R.
The question of joint possession must be determined on the facts andcircumstances of each case.
The 1st accused's explanation that he was taking the 3rd accused who wassuffering from heart disease for treatment was rightly rejected as the three accusedwould have seen the tea being loaded and the 3rd accused had disappeared from thescene. Hence the presence of the 1st accused and 3rd accused was a participatorypresence.
The facts also support the inference of joint and exclusive possession and apre-arranged plan and accordingly action in furtherance of a common intention by theaccused.
Once a person is convicted of theft he cannot also be found guilty of retention ofstolen property. Receiving or retaining stolen property is a separate offence and a thiefcannot at the same time be a receiver of stolen goods.
Case referred to:
(1) Khan v. Kanapathy (1937) 9CLW 21.
APPEAL from judgment of the Magistrate's Court of Bandarawela.
Ranjith Abeysuriya with Jaw'd Yusuf and Neville Abeyratne for 2nd. 3rd and 4thaccused-appellants.
S. J. Goonesekera, S.C. for State.
Cur. adv. vult.
November 29. 1985.
Seven persons were charged with the theft of 471 Kilos of tea valuedat Rs. 9,420 an offence punishable under s.370 of the Penal Code.Alternatively they were charged with retention of the said stolenproperty. At the trial the 5th, 6th and 7th accused were discharged.The 1st to 4th accused were convicted on both counts. The 1staccused has not appealed. This appeal is by the 2nd. 3rd and 4thaccused in the case.
The tea was alleged to have been stolen from the tea factory ofDemodera Estate. The prosecution led evidence that Lingam. theFactory Supervisor who lived close by was awakened by the barking ofdogs. It was about 1 1 p.m. on a Poya holiday. He investigated andsaw a light burning in the factory and a lorry parked in the factorycompound. He saw two persons loading bundles brought out of thestores into the lorry. He did not identify them. He alertedSamarakkody, another employee who lived close by. After loading the
Atagaratnam v. The Republic of Sri Lanka (Bandaranayake. J.)
lorry started and proceeded and when it came along the road near the^witnesses. Samarakkody challenged it and the lorry was stopped. The1 st accused was the driver. The 3rd accused was occupying the frontpassenger seat. The 2nd and 4th accused were in the rear of the lorrywith 11 gunnies full of tea. Samarakkody questioned the driver and the1st accused said he was taking the 3rd accused to hospital as hecomplained of heart trouble. Samarakkody took the switch key fromthe lorry and began to deflate a tyre. The 2nd accused thereuponcame up to him and said "a®®# aod odda” Themanagement was informed. By the time they came to the scene the2nd. 3rd and 4th accused had left.
At the close of the prosecution case the 5th to 7th accused wereacquitted. The 1st accused testified on his own behalf. He admitteddriving the lorry, and that bags of tea were found in it whenapprehended. He admitted that the 2nd. 3rd and 4th accused were inthe lorry at the time. He however sought to avoid culpability byasserting that he did not voluntarily drive the vehicle but acted undercompulsion on the orders of the discharged 5th accused to take the3rd accused to hospital. He knew the 3rd accused was suffering froma heart ailment. He had taken sick people to hospital before in thelorry. He saw some persons load gunnies from the factory into thelorry. He realised what was happening and he walked away but had toreturn. He saw the 2nd and 4th accused standing in front of the lorryand at the entrance to the tea stores from where the bags were beingbrought and loaded into the lorry. Later they too got into the lorry.
That the tea found in the lorry was stolen property was notcontested in appeal. This aspect of the case has been carefullyconsidered by the Trial Judge. It was however contended by Counselfor the appellants that there was no direct evidence that any of theseappellants 'moved' the tea from the factory into the lorry or did any actregarding the stolen property. They were in the lorry with 1 1 bags oftea. There was no evidence that the 2nd. 3rd and 4th accused were incontrol of the journey. It was the evidence of the 1st accused that itwas the discharged 5th accused who arranged the journey. Certainunidentified persons were seen carrying bags from the factory to thelorry both by Lingam and Samarakkody and by the 1st accused. It isreasonably possible therefore that persons other than the appellantsdishonestly 'moved' the property. In this state of the evidence the trial
Sri Lanka Law Reports
11986] 1 SriL. R.
Judge has first held that the appellants and the 1 st accused were injoint, conscious and exclusive possession of the property andthereafter, in the absence of an explanation by the appellantspresumed they were the thieves purportedly applying the provisions ofs. 1 14 of the Evidence Ordinance and convicted them of theft oncount 1. On the same conclusion of joint possession the appellantshave been convicted of retention of stolen property on Count 2.
It was the submission of appellants' Counsel that there wasinsufficient evidence from which a conclusion of joint exclusivepossession could be reached attributable to all the appellants. Counselrelied on the case of Khan v. Kanapathy (1). where the carcasses ofstolen goats were found in a car in which seven persons weretravelling including the owner and driver. The five accused were in therear. The Magistrate convicted the accused. It was held in appeal thatthe evidence was insufficient to attribute joint possession to theaccused. This case can be distinguished. The Magistrate had given noreasons for his conclusion. The owner and driver were not chargedalthough they were in the car. So. the person in charge of the journeywould have been the owner. Again, the car was stopped by the Policesomewhere along the journey. There was no evidence that the fiveaccused were in the car at the time the stolen property was put intothe car. They may well have got in somewhere along the way and thushave no connection whatever with the stolen property. In suchcircumstances mere knowledge of the fact that carcasses of goatswere in the car was not sufficient to connect the accused with thestolen property.
The question of joint possession must be determined on the factsand circumstances of each case. This was a Poya day holiday whenthe factory was not working. It was 1 1 p.m. The lorry was parkedwithin the factory premises. Persons were seen stealing tea from thefactory and loading it into the lorry. The 1st accused testified to theeffect that the 2nd and 4th accused were standing near the lorry andnear an entrance to the stores at the time. They could therefore haveseen what was going on. The Magistrate has examined the 1staccused's evidence with caution bearing in mind that he was anaccomplice. He has looked for corroboration. In fact the 1st accusedis corroborated on a number of material particulars by the twowitnesses for the prosecution. The only point on which he is notcorroborated is where he says that the 2nd and 4th accused werestanding near the lorry and near the stores entrance. They were in the
Alagaratnam v. The Republic of Sri Lanka (Bandaranayake. J.)
lorry when it was apprehended just outside the factory gate at thecommencement of the journey. The Magistrate has accepted thisevidence as reliable although he rejects the 1st accused's defence ofinvoluntary participation-compelled to take the sick 3rd accused tohospital along with the stolen tea. The supposed heart patient, the 3rdaccused, had disappeared from the scene when the authoritiesarrived. It is unlikely that he was a person who needed immediateattention by hospitalisation to save his life. Upon the facts andcircumstances the Magistrate was well entitled to reject the 1staccused's exculpatory plea. It is open to the trier of fact to attachdifferent degrees of credit to the testimony of a witness. It is alsosignificant that the appellants were all persons having connection withthe tea,factory. The connection could facilitate the commission of theoffence. The 2nd accused was the senior assistant factory officer. The3rd accused was the tea maker. The 4th accused was a factoryinspector under interdiction. Again there is the appellants' conduct inthat when the estate management got to the scene the appellantswere missing. The 2nd accused-appellant had also requested witnessSamarakkody to let the lorry proceed without hindrance.
In the background of these circumstances, I am of the view that thepresence of the appellants in the lorry so soon after the theft with the11 bundles of tea stolen from the factory amounts to a 'participatorypresence. The direct evidence is that the appellants witnessed thetheft. Their presence with the stolen property so close to the scene sosoon after a theft overwhelmingly suggests conscious joint exclusivepossession of the stolen articles. I reject the submission of appellant'sCounsel that their presence was a 'mere presence' from whichpossession could not be inferred in the absence of an explanation.
Counsel also argued that in any event, before an inference of theftcould be drawn against all the appellants, there must be satisfactoryevidence that the appellants together with the 1st accused shared acommon intention to steal tea.There was no satisfactory evidence inthis regard. Mere presence does not constitute evidence per se ofcommon intention.
Sn Lanka Law Reports
11986) 1 SnL R
The circumstances of this case as set out point unerringly to theinference that there was a pre-arranged plan to steal tea on this night.Upon the circumstances therefore it is a necessary inference that theappellants and the 1st accused came together at the factory at thistime for this purpose. The appellants have offered no legitimate reasonto be at the factory premises at dead of night on a holiday. TheMagistrate has rejected the innocent reason given by the 1st accused.The conduct of the prosecution witnesses in stopping the lorry clearlyshown that everyone on this estate must know that tea cannot beremoved from the factory in these circumstances. It is too much of acoincidence that the appellants came to the scene of offenceinnocently at a time when some thieves were committing an offence.The presence of the 2nd and 4th accused on the compound of thefactory near the lorry at the time of the theft and the presence of all theappellants in the lorry with the stolen property a few hundred yardsfrom the scene'of the theft point irresistibly to the conclusion that theirpresence together was in furtherance of the common intention ofthem all to commit theft of tea.
In these circumstances the presumption that the appellants are thethieves could have been drawn. The Magistrate has given satisfactoryreasons for his conclusions. The convictions and sentences of theappellants of theft on Count 1 are therefore affirmed. At the sametime it is not possible to convict them of retention of stolen property aswell. Receiving or retaining stolen property is a separate offence and athief cannot at the same time be a receiver of stolen goods. For thisreason the conviction on Count 2 cannot stand. I set aside theconvictions on Count 2. Subject to this variation the appeals aredismissed.
G. P. S. DE SILVA, J. — I agree.
Conviction and sentence on Count 1 (theft) affirmed.Conviction on Count 2 set aside.
1-ALAGARATNAM AND OTHERS v. THE REPUBLIC OF SRI LANKA