071-NLR-NLR-V-72-K.-V.-A.-SAMSON-Appellant-and-INSPECTOR-OF-POLICE-MARADANA-Respondent.pdf
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TENTvEKOOX, J.—Samson v. Inspector oj Police, Mciradana
. 1967Present: Tennekoon, J.K. V. A. SAMSON, Appellant, and INSPECTOR OF POLICE,MARADANA, RespondentS. C. 742/67—M. C. Colombo, 44070/APenal Code—Section 451—Loitering about by reputed thief—Ingredients oj ojjence—•Quantum oj evidence.
In a prosecution under section 4ol of the Penal Code, ifc is open to thocomplainant to lead evidence of previous convictions to establish the fact thattho accused is a reputed thief. (Percra v. The Police, 32 C. L. W. 10S, nobfollowed). Further, the fact of the accused being a reputed thief at the time ofloitoring may be established independently of the arresting officer’s knowledgeof tho accused’s reputation. (Mansoor v. Jayatillake, -J8 N. L. R. 308, nobfollowed). '
.A.PPEAL from a judgment of the Magistrate's Court, Colombo.
Anil J. Obet/esefcera, for the accused-appellant.
Ranjith Gunatillehe, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 6, 1967. Texnekoox, J.—
The appellant was convicted of the following charge :—
“You arc hereby charged, that you dicl, within tho jurisdiction ofthis Court at Darley Road, Maradana, on 21st April, 1967, being areputed thief did loiter about a public place to wit : Darley Road,Maradana, with intent to commit theft and that you have therebycommitted an offence punishable under section 4ol of the CeylonPenal Code. ”
TEXXEKOON', J.—Samson v. Inspector oj Police, Maradona
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It is submitted by Counsel for the appellant that there is no evidenceon rocord to support the finding that the accused was a reputed thief.
The evidence for the prosecution on tin’s point was that the accusedwas an “Island Reconvicted Criminal” bearing No. 243/57; and thathe had five previous convictions which were as follows :—
“(1) 15-11-52—Theft of a ring val: Rs. 20/- Sec. 3G9 C.P.C. M.C.
Colombo 32195/J. 505. Three 3'ears to Hikkaduwa.
27- 5-57—Theft of a purse with cash Rs. 31/-. Sec. 3G7 C.P.C.
31.C. Colombo 4I9S7/A. Six months R.I.
L—78012-10-53—H. B. and theft of cash and articles val. Rs. 153/52-
See. 443, 369, C.P.C. 31.C. Colombo 10173/A. Threemonths R.I. on each count to run consecutively.
“ M—91812— 3-60—(1) Retaining a Carburettor Val. Rs. 50/.
Retaining stolen property Val. Rs. 3/50.
Retaining stolen property Val. Rs. 7/60. Sec.394 C.P.C. M.C. Colombo 29564/B. One yearR.I. and two years P.S.
0—5851(5)4-12-63—Theft of cash Rs. 13/- Sec. 367 C.P.C.47053/A. Two years R.I.
M.C.ColomboR—98S5 ”
The prosecution also called one Police Constable Gunasena of the3Iaradana Police who testified that ho was a supervisor of criminals inthe Maradana area. He also said that he knew the accused who wasan “ Island Reconvicted Criminal ” bearing No. 243/57. It was thisofficer who noticed the accused loitering on the day in question, andarrested him. The accused giving evidence admitted that ho was an“Island Reconvicted Criminal”, that he had four previous convictions,all of which were for theft. Counsel for the appellant cited in supportof his submission the case of Perera v. The Police 1 m which it was heldthat—
“It is not open to the prosecution to lead evidence of previousconvictions to establish the fact that the accused is a reputed thief.The evidence available for the prosecution must be evidence of thereputation of the accused apart from previous convictions.”
With all respect I do not agree ; it seems to mo that “ repute ” does notmean only false repute but also includes a reputation for what one actuallyis. Reputation is the estimate or belief that other people have of thenature of a man’s character. Nothing could bo a better foundation
1 U91G) 32 C. L. ir. 103.
332TENNEKOOX, J.—Samson v. Inspector of Police, Maradana
for forming an estimate of another’s character than actual instancesin which that character is displayed. Such instances of thievery it istrue may establish that a man is a thief but may not establish his repu-tation as a thief. But where tho person is caught out, publicly prosecutedand convicted on numerous occasions it can hardly bo said that thoseconvictions have not given him a reputation for being a thief amongthose people who are likely to form any opinion or estimate of his character.Members of his family, his immediate friends, acquaintances and alsopersons who live in his neighbourhood could not have been unaware ofhis frequent convictions for theft and of his frequent disappearancesfrom homo to servo terms of imprisonment for theft. I think this is acaso in which the accused’s reputation for being a thief has been establishedindirectly and circumstantially.
Counsel for tho appellant also referred mo to the case of Mansoor v.Jayritillake1 in which it was held that on a charge under section 451 oftho Peual Code tho burden is on the complainant to show at the trialthat tho accused loitered or lurked about a public place, that he had areputation of being a thief, and that the prosecution does not dischargethat burden by arresting the accused on suspicion, and then ex postfacto establishing that he was a thief, a fact which was unknown at tho■ time the alleged offence was committed. The proposition that thereputation of being a thief must exist at the time of loitering isunexceptionable, but, with respect, it seems to me that it is irrelevant thattho arresting officer did not know that the accused had such a imputationat the time of arrest. The absence of such knowledge on the part oftho arresting officer may affect lawfulness or otherwise of tho arrest,but I cannot see why the fact of the accused being a reputed thief atthe thus of loitering which is one of the ingredients of the offence undersection 451 of the Penal Code cannot bo established independently ofthe arresting officer’s knowledge of the accused’s reputation. I
I find also another caso viz. Nair v. Velupillai3 in which section 451of the Penal Code has been considered. Tho question of tho nature oftho evidence necessary to establish the ingredient of tho accused being a“ reputed thief” was apparently not in question in that case. But it isinteresting to note that Socrlsz, J. makes this general observation inregard to that section: ” The accused man was charged in that being’’reputed thief’ he was '’found loitering about on the public road withintention to commit theft, or other unlawful act’. To establish such acharge the prosecution must prove (I) that tho accused was a thief orwas reputed a thief, (2) that lie was loitering about in a public place,
(3) that his intention was to commit theft or other unlawful act.”
In saying that the prosecution had to establish that the accused was athief or reputed thief, I think that Socrtsz, J. was also impliedly givingexpression to what I have said earlier in this judgment viz. that a personwho has repeated convictions for theft is a thief who cannot but have a
reputation of being a thief.
1 {1917) 4S X. L. Ji. 30S.
– (1935) 37 X. L. P. 2-tS. ■
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SAMERAWICKRAME, J.—Mohamtd v. Wahab
I hold that, the prosecution has placed sufficient evidence before thelearned Magistrate for him to conclude that the accused was a reputedthief at the time ho was found loitering as alleged in the charge.
The appeal is dismissed. Conviction and sentence are affirmed.
Appeal dismissed.