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1898.July 26,
P. C., Matara, 31,475.
Evidence—Presumption of theft from recent possession of stolen property—
Conviction of one of several joint occupants of a house or room, orone of several persons who had equal access to an open box, whererecently stolen property is found—Proof of exclusive possession.
In a case of theft of property, no definite presumption of guiltcould be made against the accused, if the property stolen were onlyfound lying in a house or room in which he lived jointly with othersequally capable with himself of having committed the theft, or inan open box to which others had access.
In order to raise this presumption legitimately, the possession ofthe stolen property should be exclusive as well as recent.
Empress v. Malhari, VI., I. L. R., Bombay Series, p. 731, followed.
PON a petition presented by one Nonatcho, who described
herself as the daughter of Kirinda Arachchige Baba Appu,who was convicted on the 27th of June last in the Police Courtof Matara for the offence of theft of a box and its contents ofthe value of Rs. 35 from a building used as a human dwelling,Mr. Justice Withebs called for the record of the case, in orderto satisfy himself as to the legality of the-conviction and sentencepassed upon him.
His Lordship set aside the conviction and acquitted Baba Appuin the following judgment.
25th July, 1898. Withebs, J.—
In my opinion the conviction is not a legal one, there being noevidence to support it. The facts are briefly these :—
On the 3rd June this Baba Appu and Punchihamy, his wife, wereproduced by the police before the Court with a stolen box andsome of the articles contained in it when it was stolen. The firstwitness for the prosecution, Punchi, identified the box as hers,and deposed that early at daybreak on 2nd June she missed thisbox, under circumstances which indicated that some one musthave stolen it. She was much distressed on this discovery, butwas relieved by her brother coming and telling her that her boxwas in the house of Punchihamy, first accused. At the close of thisperson’s examination, the accused were apparently called upon toshow cause why they should not be convicted. Punchihamy, thewife, made this statement: “ This box produced was found in my

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“ house. I saw it there when I returned home yesterday morning 1808.
“ (2nd June) from my sister’s house. I do not know who brought2S-
“ the box there. The second accused is my husband. He sent Withkbs. J.“ for the key of our house while I was at my sister’s, and I sent the“ key by a child. I did not steal these articles.”
Baba Appu, the second accused, made this statement: “I never“ borrowed the key from my wife. I do not live with her. I lived“ apart from her for the last five or six years.”
According to the constable, he was informed of this theft about10.30 a.m. on 2nd June. He went to the house where the boxwas said to be and found it there. The house was unlocked bythe first accused and the constable was admitted. While he wasmaking the search the second accused came up.
The prosecutor’s brother, Mathes, deposed that on hearing ofthis box he suspected the first accused Punchihamy, and it was onhis information that the police searched the house. It wouldseem that the ground of this witness’ suspicion was the fact thatfirst accused has a brother in the hamlet, who is a notorious thief.
This witness confirmed the second accused’s statement, that heand his wife lived apart. They had lived apart, according to thisMathes, for more than a year in consequence of a quarrel.
That was the case for the prosecution. Then, the first accusedPunchihamy gave evidence on her own behalf, and she said thatshe did not steal the articles in Court. She saw them onemorning, about a month ago, in her house, and did not know howthey came there. They were not there the night before.
According to her, her husband, the second accused, four childrenof hers, and her son-in-law live in the house, her husbandsleeping, as a rule, on the pi-la. She declared that her husband andshe were on good tennis and had never parted. This woman calledtwo of her sons Sinho and Siadoris. They said they were at homeon the night of the alleged theft, and did not know how the boxof clothes got into their house. They both supported their motherin the statement that their father, the second accused, had hadno quarrel and lived together, and that he was at home that night.
The second accused called himself as a witness. He denied thetheft. He denied being in his wife’s house the night of the theft.
He swore that he had lived apart from her (his wife) for a yearowing to a quarrel and a fight. He further swore that on thenight of the occurrence of the theft he slept at the house of oneDinneshamy, with whom he had been living since his separationa year ago. Dinneshamy was called and swore that for eighteenmonths the second accused, Baba Appu, had regularly slept at hishouse.
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July 25.
Wisbbbs, J.
How the Magistrate, oil the face of this evidence, supported by awitness for the prosecution, came to the conclusion that secondaccused had signally failed to prove that at the time of this thefthe was living apart from his wife, I am at a loss to understand.He could not take the wife’s evidence into consideration at all.But of course I will assume that the second accused, Baba Appu,was sleeping at the house on that night. Because he was therethat night the Magistrate presumes that he must have been awareof the presence of the stolen property, and he says “ as it was seen“ there so soon after the theft, the presumption is that he was the“ thief.” But in this case no such presumption can be made. For,according to the wife, her two sons and her son-in-law lived in thehouse jointly with her husband, and there was no evidence thatthe box was found in the exclusive possession of the secondaccused. In the case of Regina v. Malhari, vol. VI. of Indian LawReports, Bombay Series, Mr. Justice Melvill, in regard to adacoity case which came up before him in appeal, made thefollowing observation:—“ But if the articles stolen were only“ found lying in a house or room in which he lived jointly with“ others equally capable of having committed the theft, or in an“ open box to which others had access, no definite presumption of“ his guilt could be made.” I adopt that language. Clearly, inmy opinion, the conviction is not supported by any evidence, andI propose to deal with the case as I should had it come up indue course of appeal.
The judgment must be set aside and one of acquittal substitutedfor it.