053-NLR-NLR-V-25-BANDA-v.-ANDRE-APPU-et-al.pdf
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Present: Jayewardene A.J.
BANDA ANDRE APPU et ah556—P. C. Colombo, 993jC.
Theft^-Workmen engaged in soldering found soon after dose of workwith rods of soldering lead—Presumption of theft—EvidenceOrdinance, s, 114,
Two .workmen employed at the Railway workshop were foundin the evening with sixteen rods of soldering lead in their waistabout 100 fathoms from the workshop soon after the workshop wasclosed. Rods of lead like those found on them were used in theworkshop, and the accused were engaged in soldering and doingother work with such lead. Owing to the large quantity of leadused at the workshop, it was not possible to say that the. piecesfound on the accused were missed by the Railway authorities, andno one identified the lead as lead belonging to the Railway.
Held, that the accused were rightly called upon to account fortheir possession of the lead, and that in the circumstances theywere rightly convicted.
'J'HE facts appear from the judgment.
J. S. Jayawardene, for the accused, appellants.
•October 3, 1923. Jayewabdene A.J.—
In this case two workmen employed at the Ceylon GovernmentRailway workshops have been convicted of the theft of sixteen piecesor rods of soldering lead, worth Rs. 2, the property of the CeylonGovernment Railway. The appellants were arrested on suspicionby two constables at about 4.45 in the evening, with the lead intheir waists, about a 100 fathoms from the workshop. Rods of leadlike those found on the accused are used in the Railway workshop,and the accused are engaged in soldering and doing other workwith such lead. There is no evidence that rods of lead like thoseimported for the Railway are to be bought elsewhere, as the Assist*ant Works Manager only said that he did not know that suchlead was procurable in the market. Owing to the large quantityof lead used at the workshop, it was not possible to say that thepieces found on the accused were missed by the Railway authorities.It is urged for the accused that as the prosecution has not provedthat any lead was missed from the workshop, and as nobody hasidentified the lead as the lead belonging to the Railway, the accusedmust be acquitted. I do not think this contention is well founded.In my opinion the Court rightly presumed from the circumstances
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that the lead was stolen property. It is not always necessary forthe prosecution to prove that the complainant missed any of thegoods alleged to be stolen, it is sufficient if the Court can inferfrom the facts and circumstances that they were stolen from him.Ameer Ali and Woodroffe in their Law of Evidence (6th ed., p. 715),commenting on illustration (a) of section 114 of the Indian EvidenceAct, which is identical with section 114, illustration (a), of ourOrdinance, and which enacts that—
1928.
Jayewar-DENE A. J.
Banda v.Andre Appu
" The Court may presume (a) that a man who is in possessionof stolen goods soon after the theft is either the thief orhas received the goods knowing them to be stolen, unlesshe can account for his possession.*’
say:—
” The property must be shown to have been stolen by the tnkeowner swearing to its identity and loss, or the circum-stances must be such as to lead in themselves to theconclusion that the property was not honestly come by.So persons employed in carrying sugar and other articlesfrom ships and wharves have been convicted of theftupon evidence that they were detected with property ofthe same kind upon them recently upon coming fromsuch places, although the identity of the property asbelonging to such and such persons could not otherwisebe proved. If the property be proved to have beenstolen, or may fairly be presumed to have been so, thenthe question arises, whether or not the prisoner is to becalled upon to account for the possession of it.”
The English law is the same, as the following extract fromArchibald’s Criminal Pleading (21st ed., p. 276) shows :—
“ Although upon an indictment for larceny it is necessary toprove that goods of the prosecutor have been taken,that may be proved by circumstances, although thewitnesses for the prosecution cannot swear to the loss ofthe article said to be stolen, nor that the property foundupon the prisoner and alleged to have been stolen is theprosecutor’s. A large quantity of pepper was kept inbulk in a warehouse where the prisoner had no business.He was met coming out of the warehouse having on hima quantity of pepper of the same description as that in thewarehouse. On being stopped he threw down the pepper,and said, I hope you will not be hard on me. Erom thelarge quantify in the warehouse, it could not be provedthat any pepper had been taken from the bulk. Uponthese facts, it was held that there was abundant evidence
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1928.
Jatewab*DBNIB A.J.
Banda v.Andre Appu
to justify the conviction of the prisoner for stealing thepepper. R. v. Burton.1 1 If a man goes into the LondonDocks sober, without means of getting drunk, and comesout of one of the cellars very drunk, wherein are a milliongallons of wine, 1 think that would be reasonable evidencethat he had stolen some of the wine in that cellar, thoughyou could not prove that any wine was stolen, or anywine was missed.’—Per Maule J. in R. v. Burton, Dears282
The accused use pieces of lead, similar to those found on them,in their work at the workshop; they were arrested with the leadin their possession close to the workshop soon after the workshopwas closed for the day, and the lead was found concealed in theirwaists. Upon proof of these facts the accused were rightly calledupon to account for their possession of the lead. The accused intheir statements said that they bought the lead from a man at aboutique at Maulanawatta, where they had gone to take tea. They,however, gave no evidence, and called no witnesses to account fortheir possession, although they had mentioned one Sada Lai ashaving seen the sale. In the circumstances and on the facts, thelearned Police Magistrate was perfectly justified in drawing theinference' that the lead was stolen from the Railway workshopin fact the inference seems irresistible. Counsel for the accusedrelies oh The R. M.t Matale South, v. Goonesekera2 in support of hiscontention. That cade is, however, clearly distinguishable, for theCourt there held that the evidence of identity was defective, as theowner declined to swear to the fact that the rubber plants allegedto be stolen were the same as those on his land, and there wasno evidence that the accused was ever actually seen near the spotwhere the theft took place. This fact, in the opinion of the Court,differentiated that case from the English cases. The case wasconsidered to be one of the highest suspicion, but the accused wasgiven the benefit of the doubt. That case is, therefore, on thefacts very different from the facts proved here, where the accusedwas admittedly at the spot where lead similar to the lead allegedto be stolen was Jbeing used by the accused themselves in theirwork. Their conviction is, therefore, in my opinion right, andmust be affirmed. In view of the fact that the first accused hadbeen employed in the workshop for twelve years and the secondaccused for six years, and the trifling/ value of the articles stolen,I reduce the sentence to six weeks’ rigorous imprisonment.
Sentence varied. i
i Dears 282 : 23 L. J. (M. C.) 52.1 {1905) 1 Leem. 82.