KOCH J.—Fernando v. William Singho.
1935Present: Koch J.
FERNANDO v. WILLIAM SINGHO331—P. C. Matale, 12,807.
Appeal from acquittal—Interference only in exceptional cases—Retainingstolen property—Reasonable explanation—Penal Code, s. 394.
An appeal on the facts from an acquittal should not be allowed unlessit is established that the Magistrate has acted under a misapprehensionof the effect of the evidence or unless there is some fact, not dependenton the credibility of witnesses, which shows that his finding is incorrect.
Where, in a charge of receiving stolen property, the explanation of theaccused taken as a whole is reasonable, the fact that there are one or twostatements that may not be strictly true will not prevent the explanationfrom prevailing, unless the prosecution satisfies the Court that theexplanation qua-explanation is false.
A PPEAL from an acquittal by the Police Magistrate of Matale.
Kariapper, Acting C.C., for Crown, appellant.
R. C. Fonseka, for accused, respondent.
August 1, 1935. Koch J.—
This is an appeal by the complainant, P. C. 2303 M. R. C. Fernando,with the sanction of the Solicitor-General. The respondent, who wasthe second bungalow servant of Mr. H. J. D. Stokes, was charged withhaving on or about October 16, 1934, committed theft of a white bedsheet, a white pillowcase, seven curtains, one silk handkerchief,- one pairsilk stockings, and half a packet . (1 lb.) of tea, all valued at Rs. 15, theproperty of Mr. Stokes, under section 370 of the Penal Code. He wasalso charged under section 394 with receiving or retaining these articlesknowing or having reason to believe the same to be stolen.
The learned Magistrate considered the case to be one only of strongsuspicion, and as he had doubts as to the guilt of the respondent, he gavethe accused the benefit of those doubts and acquitted him.
The appeal is on the law and the facts. So far as the facts are con-cerned, it has been held in the cases of The Solicitor-General v. Fernando 1and The King v. Kumdrasamy* that an appeal on the facts from anacquittal should not succeed unless it has been established that theMagistrate has acted under a misapprehension of the effect of the evidenceor unless there is some fact, not dependent on the credibility of thewitnesses, that shows that his finding of the facts is incorrect, and thatthis Court should only interfere in very exceptional cases when it isperfectly clear to this tribunal that the finding of the inferior Court iserroneous.
The facts, as found by the learned Magistrate, are that the silk stockingsand silk handkerchief (PI), some pieces of curtains (P2), and a pillowcase(P3) were found in a trunk in a room in the Assistant Superintendent’sbungalow, which at the time was used as servants’ quarters. There» 1 C. W. R. 207.2 s c. W. R. 184.
KOCH J.—Fernando v. 'William. Singho.
were four rooms in this bungalow and one of them was occupied by therespondent and his wife, the rest being occupied by others. He alsofound that in an unlocked drawer of a chest in the same room werediscovered the white bed sheet (P4) and the half packet of tea. He furtherfound that these articles were rightly identified by Mrs. Stokes as belongingto her. It does not transpire either in the evidence or in the judgmentwhen these articles were missed by the owner. It is possible thereforethat the possession was not recent. It is for the prosecution to establishrecent possession on the part of the respondent before the presumptionof theft can apply. Assuming that the possession was recent, a burdenlay on the respondent to explain his possession.
In the trunk were also found women’s clothes, and this trunk wasopened by the Police in Mr. Stokes’ presence with a key that was handedto the Police by the respondent’s wife. In a cupboard in this roomamong a number of knickknacks was found the half pound of tea andin the unlocked drawer of a chest of drawers the sheet was discoveredamong the accused’s clothes and a child’s clothes.
Much was made of the point by the appellant’s counsel that the re-spondent in his evidence in chief said “ I deny that the articles producedwere found in my possession ”. He argued therefrom that this denialwhich was false tinged the respondent’s explanation and that thereforethe explanation was not acceptable, although the Magistrate did in pointof fact accept it. It is clear that the respondent in making this statementdid not intend to deny that the articles were physically discovered inhis room but that he intended not to admit that they could be said to bein his actual possession as different from his wife’s or that they were inhis exclusive possession.
This is an instance of unhappy recording, for a reference to the chargesheet will show that when the accused was asked to plead he stated“ I am not guilty. These articles were lying in the drawer of my room ”.Then follows a brief explanation. This was before the trial.
There is a point, however, where his evidence clashes with the Magis-trate’s finding, and that is that P 1 and P 3 were found in the drawer.The Magistrate is of opinion that these articles were found in the trunk,but this does not materially matter as P 1 and P 3 being in the trunk weremore favourable to the respondent as the trunk contained his wife’sclothes and the key was with his wife.
There is also the fact found by the Magistrate that some of the piecesof curtains (P 2) were fixed on a screen which separated one room fromanother and that these were openly hung up—to use the Magistrate’sown words.
The learned Magistrate took these circumstances into considerationas well as the fact that the articles in question were either of femaleapparel or intended for the use of women, and also that there was enmitybetween another servant, the driver, and the respondent over the former’sintimacy with the respondent’s sister-in-law, and came to the conclusionthat it was quite possible that these articles may have come into thehands of the respondent’s wife from hands other than the accused’s.The facts that the respondent’s clothes were also in the drawer did notescape the Magistrate.
KOCH J.—Fernando v'. William sungho.
In Rex v. Bailey1 a direction to the jury that when it came to theaccused’s turn to explain the possession they had to be satisfied that theexplanation was true was held to be a misdirection to the jury on the law.
In Rex v. Ambramovitch1 Lord Reading C.J. laid down as law that ifthe jury thought that the explanation given was reasonably true, althoughnot convinced that it was true, the prisoner was entitled to be acquitted.
The decisions in these cases met with the approval of Anton BertramC.J. in Perera v. Marthelis Appu
The same point, however, came up for consideration before a Divi-sional Bench in the case of The Attorney-General v. Rawther *. Sir AntonBertram there was of opinion that the words used by Lord Reading reallymeant that the explanation should be reasonable. This view was adoptedby Akbar J. in King v. Thomas Appuc.
In this state of the law my opinion is that if the explanation of theaccused taken as a whole is reasonable, the fact that in the course of thatexplanation there may happen to be one or two statements that maynot be strictly true will not prevent the explanation from prevailing,unless the prosecution satisfies the Court that the explanation qua-explanation is false.
It may relevantly be noted that in the Divisional Bench ruling Ennis J.stressed the importance of the possession being recent. He observedthat the presumption of guilt arising from recent possession gets weakeras time goes by till the point is reached when no presumption can bedrawn. If the article, he declared, be a common thing passing fromhand to hand in the every day business of human life, this point wouldsoon be reached.
The articles in the case before me are common things and it is not clearwhen they were stolen. So far as the curtains are concerned, Mr. Stokes’evidence is that they were in the bungalow till about June, 1934, whilethe date of the theft given in the charge is October 16, 1934, i.e., fourmonths after. There is no corresponding evidence regarding the otherarticles. He also refers to a letter he wrote to the Police on October 19,
What this letter contained we do not know. It is possible thathe generally stated there that articles were missing from time to timefrom the bungalow, but in the absence of specific evidence that thearticles in question were stolen very recently, I have to hold that it hasnot been proved when these articles were stolen. I cannot thereforeregard these as recent thefts.
The Magistrate has accepted the explanation of the accused as reason-able in the circumstances and given the respondent the benefit of thedoubt. He was also of opinion that the possession of the respondent wasnot actual or exclusive. I am not prepared to say that the learnedMagistrate is wrong and I therefore dismiss the appeal.
i (1917) W. N. 323.a (1914) 84 L. J. K. B. 397.
3 21 N. L. R. 312.*25 N. L. R. 385.
» 30 N. h. R. 431.
FERNANDO v. WILLIAM SINGHO