079-NLR-NLR-V-02-GUNASEKERA-v.-THEGIS-et-al.pdf
( 196 )
1896'.
August 17.
GUNASEKERA v. THEGIS et al.
P. C., GaUe, 21,235.
Recent possession of stolen property—Inf erence from such possession wherethe theft had been committed in the course of house-breaking. -Where the doors of a school-house were found to have beenforced open arid a table and a chair-removed, semble, per Withebs,J., that if an inference was to be drawn from the fact of possessionof the stolen chair, it is that the possessor stole it in the commissionof house-breaking.
rjAHE facts of the case appear in the judgment.
Bawa, for appellant.
17th August, 1896. Withebs, J.—
In my opinion this conviction cannot be sustained. .It is verydoubtful whether the Magistrate had any jurisdiction to try thiscase at all. It appears that on or about the 22nd February, afterthe Wesleyan Mission school-house had been locked up by theschoolmaster, one of the doors was forced open and a table and achair removed. The chair was found in the house of a man namedThegis on the 20th June following.
This man Thegis accounted for the possession of the chair bysaying that Allis, the' appellant, brought the chair to his house.Allis was then summoned before the Court, and without at firstbeing charged with any specific offence, the plaint which charged
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Thegis With being oonoemed in the theft of this chair was explained. 1806.to him, and he was told that it was said that he had either sold August l7.or pawned this chair with first accused or his wife, which alterna- Withers, J.tive statements he denied. This being done the original trialagainst Thegis was continued. After hearing the evidence of theschoolmaster, Mr. Gunasekara, Arnolis Kumarasinghe, the PoliceOfficer of Kadurupa, Jayanhamy, the wife of Thegis, and her motherAdanghami, and Nadoris, the Police Officer of Busse, the first. accused was acquitted, the Magistrate being of opinion that all thecircumstances tended to show that he was in innocent possession ofthe stolen chair.
Then for the first time the charge of simple theft of a chair worthBe. 1 ‘25 was framed against the appellant Allis, and he claimed tobe tried. His trial consisted of calling upon him and his witnessesfor the defence.
This was not a regular proceeding, but Allis appears to have beendefended by a proctor.
Thegis gave no sworn evidence as to how the chair got into hishouse.' His wife, Jayanhamy, deposed that second accused broughtthe chair with two other chairs to her husband’s house about twomonths before the last Sinhalese new year. She lent him, she says,
Re. 1 • 50 and took the chairs in pawn. This was close upon midday,when her husband was away at a plumbago mine. Two monthsbefore the Sinhalese new year would be about the 11th or 12th of. February, and that would be before the mission house was brokeninto. Thegis’s mother-in-law, Adanghami, confirms his wife’saccount of the circumstances under which the three chairs werebrought by Allis to their house. . She says that happened three orfour months ago. She was examined on the 30th July, and thatwould bring the theft to about the end of April.
It must be remembered that these are witnesses interested tomaintain the interest of a person first charged with the offence,and who had the character of having been convicted some three orfour times of offences. Allis, the appellant, if the evidence for theprosecution is to be trusted, is a man who owns a large and well-furnished house. His parents died owning property, and he hasborne a good character hitherto. He has gone into the witness boxand sworn that he had nothing to do with this chair at all, and thatThegis has involved him in this difficulty because of his enmitytowards him.
The fact of this ill-feeling is' attested'to by a witness for the pro-secution. From the fact of his having brought this chair with twoother chairs to the first-accused’s house the offence of theft has beenpresumed against him.
( 198 )
1806.
August 17.Withers, J.
I think it would be extremely dangerous to convict a man onsuch evidence, and if an inference is to he drawn from the fact ofhis having a stolen mission chair in his possession, in this case hestole it in the commission of house-breaking, an offence which theMagistrate was not competent to try. Hence I express my doubt asto whether the Magistrate had jurisdiction to try this case withoutthe consent of the accused.
Treating it as one which he could try, I think the appellant shouldhave the benefit of the doubt, assuming that his pawning of thechair with the two others justified a verdict of guilty.
Set aside and accused acquitted.
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