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BANDA v. HENAYA.P. <?., Kejalla, 14,815.
Criminal law—Dishonest retention of stolen property—Dishonest receipt—Ceylon Penal Code, s. 394.
The offence of dishonestlyretaining stolen property under section394 of the Geylon Penal Code must be carefully distinguished fromthat of dishonest receipt with guilty knowledge under the samesection. The guilty receiver, when he receives property, knows itto be stolen ; but guilty retention pre-supposes innocent receipt inthe first instance. What must be proved on a charge of dishonestretention of stolen property is not only knowledge or reasonablebelief on the part of the accused that the property in his possession^was stolen, but that he, having acquired that knowledge, dishonestlykept such property.
HE facts of the case sufficiently appear in the judgment. Itwas argued on 29th January, 1896.
Bawa, for appellant.
The accused in this case has been charged with the offence ofdishonestly retaining a buffalo, the property of one Tikiri, knowingor having reason to believe that the animal was stolen property.The offence of retaining stolen property under section 394 must becarefully distinguished from that of dishonestly receiving propertyknowing or believing it to be stolen. The offence of receiving datesfrom the very moment of reception.
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The guilty receiver, when he receives property, knows it to bestolen, and dishonestly receives it, i.e., with the intention of pro-curing'for himself unlawful gain, or causing unlawful loss to anotherperson. But guilty retention presumes innocent receipt in thefirst instance. What must be proved against the man who retainssuch property is not only the knowledge or reasonable belief thatthe property in his possession is stolen, but that having acquiredthat knowledge he..dishonestly keeps the property. I may beinformed that some property I have is stolen property, and I maykeep it with the intention of giving it to the true owner whendiscovered. That would not be an offence.
Here it has not been brought home to the accused that after theanimal had come into his possession he acquired the knowledgeor reasonable belief that it was stolen, and that, notwithstanding,he kept it dishonestly.
I will not say that there is no material for charging the accusedwith the principal offence of theft, or with the offence of receivingstolen property, because from recent possession of stolen propertyit has been laid down that either theft or the offence of receivingwith guilty knowledge may be presumed. If I was as confidentas the Magistrate that the animal had been actually stolen fromthe cattle shed, if I was as satisfied as he is that Dingiri, the secondwitness for the prosecution, identified the herdsman’s buffalo inthe dark, when he says that he saw the accused take it to the elafor water,' I might » take it upon myself to use the provisions ofsection 211 of the Criminal Procedure Code against the accused,and find him guilty of either the offence of theft or receipt, thoughhe has not been actually charged with either. Not taking quite thesame view of the case as the Magistrate has done, I shall not do so.
I simply set aside the judgment convicting this accused of the offenceof retaining Tikiri’s buffalo having reason to believe the animal to bestolen, and acquit and discharge him.
January 29.WixHKBa, 3.
BANDA v. HENAYA