009-NLR-NLR-V-34-BURAH–v.-SUBAYA.pdf
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Present: Macdonell C.J.
BURAH v. SUBAYA.
P. C. Kegalla, No. 17,003.
Possession of. housebreaking implements—Bunch of keys—Intent—Onus ofproof—Explanation unsatisfactory—Penal Code, s. 449.
Where on a charge under section 449 of the Criminal Procedure-Code of being in possession, without lawful excuse, of an instrument ofhousebreaking, &c., the accused is found with a key, a torch light, and aknife, that is, with articles of an ambiguous character, the onus is onthe prosecution to prove the intent of the possessor to use them forhousebreaking. It is not correct in such a case to draw ,an inference ofcriminal intent from an unsatisfactory explanation by the accused of hispossession of such articles.
MACDONELL C.J.—Burah v. Subaya.
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C
ASE stated by the Police Magistrate of Kegalla under section 353 ofthe Criminal Procedure Code in P. C. Kegalla, No. 17,003.
Deraniyagala, Acting C.C., for the Attorney-General.
December 3, 1931. MaCdonell C.J.—
This is a case stated by the Police Magistrate of Kegalla under section.353 of the Criminal Procedure Code. The facts were these :The two
accused, together with two men who were discharged, were seen walkingalong the road to Kegalla at various times in the afternoon between 4and about 5.30. Their presence attracted the suspicion of certain of theauthorities who sent word to the police, as a result of which the accusedwere arrested. When searched keys were found on each of the twoaccused and on the second of the two accused also a 4-inch pointed knife,a torch light, and a small clasp knife (a kris knife was produced .as one ofthe exhibits in this case but the evidence is not sufficient to connect itwith either of the accused). When charged before the Magistrate undersection 449, they gave, at the very least, an extremely lame excuse forbeing in possession of the keys. The question before , me is, can they boconvicted under section 449 of the Penal Code.
The section reads as follows : —
“Whoever is found having in his. custody or possession without lawfulexcuse, the proof of which lies on him, any instrument of house-breaking, or being armed with any dangerous or offensiveweapon, with intent to commit any unlawful act, shall bepunished with imprisonment of either description for a termwhich may extend to two years, or with fine, or with both, andsuch instrument or weapon shall be forfeited to the Crown.”
Now beyond doubt keys can be used for an innocent purpose as wellas for breaking open a house. This fact distinguishes keys from such animplement as a jemmy which apparently can be used for no other purpose -except to break a closed and fastened door, window, or shutter. As,therefore, keys can be used for an innocent purpose this distinguishesthe present case from Fernando v. Fernando1 where it was laid downthat where an instrument commonly used for housebreaking is foundin the possession of a person, it is not necessary for the prosecution toprove in a charge^under section 449 that there was an intent on the partof that person to use the instrument for housebreaking. Here the thingfound—keys—could be used for an innocent purpose, and, therefore,the onus still lay upon the prosecution to prove the intent on the part ofthe possessor to use them for housebreaking. I doubt on the evidencethat that intent was proved, or could be proved. (The other thingsfound, knives and torch, can also be used for quite innocent purposes.)
In the cases cited to me there was always some piece of evidence, such as ^loitering or being out l&te at night, or attempting to evade the police,or setting up a wholly false explanation of the possession, from which theintent to commit housebreaking jcould be inferred, but in the present casesuch evidence is absent. I think that were one to affirm the conviction
i 25 N. L. R. 33.
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in this case, one would be going very near to deciding that a bunch of keysis ipso facto a housebreaking implement which, of course, one cannot do.It is true that the several explanations by the two accused of their posses-sion of keys were not satisfactory, but explanations of what ? Ofpossession of an instrument ambiguous in character since it can be usedfor an innocent as well as for a felonious purpose, and if so, an inferenceof criminal intent from an unsatisfactory explanation of possession wouldbe, or would be very like, a petitio principii.
For these reasons my answer to the question put must be that theconviction was not correct in point of law since there was not sufficientevidence from which an intent to commit housebreaking could reasonablybe inferred. Under these circumstances the conviction must be set asideand the two accused discharged.
Set aside.