132-NLR-NLR-V-44-CASSIM-Appellant-and-UDAYAR-MANAAR-Respondent.pdf
WUEYEWARDENE J.—Cassim and Udayar, Manaar.
519
1943-Present: Wijeyewardene J.
CASSIM, Appellant, and UDAYAR, MANAAR, Respondent.
397—M. C. Mannar, 2,788.
Evidence Ordinance—Presumption under section 114 (a)—Presumption of factand not of law—Duty of Court.
The presumption arising under section 114(a) of the Evidence
Ordinance is a presumption of fact, in the nature of a maxim, and theCourt has to consider carefully whether the maxim applies to the factsof the case before it.
The presumption is not confined to cases of theft.
^^PPEAL from a conviction by the Magistrate of Mannar.
J.E. M. Obeyesekere, for the accused, appellant.
P. A. Silva, C.C., for the respondent.
Cur. adv. vult.
July 30, 1943. Wijeyewahdene J.—
The accused-appellant was charged with (a) housebreaking by night(section 443 of the Penal Code) and (b) theft (section 369) or in thealternative dishonest retention of stolen property (section 394). He wasconvicted under sections 443. and 369 and sentenced to rigorous imprison-ment for two consecutive periods of six months.
In the course of a well considered judgment the Magistrate has analysedthe evidence carefully and reached the decision that the goods foundin the possession of the accused at Anuradhapura on January 14, 1943,were some of the goods stolen from a house in Mannar which was burgled110 N. L. R..183.* 7 N. L. R. 96.
520
Ratnasekera and Miller & Co.
eight days earlier and that the accused knew that they were stolenproperty. I do not think it necessary to refer to the evidence in detailas I am in entire agreement with the learned Magistrate with regardto the findings.
The conviction of the accused on the charges of housebreaking andtheft is based upon those findings of facts. It is no doubt open to a Courtto draw such an inference of guilt under section 114 of the EvidenceOrdinance as stated in the following passage in Taylor on Evidence (12thed., para. 142).
“ The presumption is not confined to cases of theft but applies to allerimes even the most penal. Thus, on an indictment for arson proofthat property which was in the house at the time it was burnt, wassoon afterwards found in the possession of the prisoner has been heldto raise a probable presumption that he was present and concernedin the offence. A like inference has been raised in the case of murderaccompanied by robbery, in the case of burglary and in the case of thepossession of a quantity of counterfeit money. ”
The presumption arising under section 114 of the Evidence Ordinanceis not, however a presumption of law but a presumption of fact “ in thenature of a mere maxim ”, and the Court has to consider carefully whetherthe maxim applies to the facts of the case before it.'
The accused is a hawker of goods and there is no evidence whatever toshow that he was seen near the *burgled house or even in Mannar at orabout the tame of the burglary. I do not think it safe in the circumstancesof this case to base a conviction for housebreaking and theft on theisolated fact of the retention of stolen property, eight days later.
I set aside the conviction under sections 443 and 369 and convict undersection 394 and sentence the accused to rigorous imprisonment for sixmonths.
Conviction varied■