( 507 .)
Present: Akbar J.
KARTIGESU i>. ALWIS.182—P. C. Colombo, 36,726.
Retaining stolen property—Guilty knowledge—Reason to believe—PenalCode, s. 394.
Where a person is charged with dishonestly retaining stolenproperty, there must be proof that the circumstances were suchthat the accused must have felt convinced that the propertywas stolen.
i PPEAL from a conviction by the Police Magistrate of Colombo.
Choksy, for the accused, appellant.
May 21, 1929. AkbabJ.— .
The accused has been convicted of the offence of dishonestlyretaining stolen property, namely, a secondhand bicycle valued atUs. 75, and sentenced to 6 weeks’ rigorous imprisonment.
( 508 )
As the Police Magistrate says, the facts are not contested.
The bicycle was stolen on January 3, 1928, and was found inaccused’s possession on December 29, 1928. He immediately toldthe constable the story which he has narrated to the Court, namely,that he was in want of a bicycle to go about in the course of hisbusiness as an agent of the Singer Machine Co., and that he boughtthe maohine from one Elma, about 8 months before his arrest, forRs. 25 and that he had paid Rs. 12, and that he has not paid thebalance because Elma did not press him for it, excepting for oneoccasion a month after the sale. It is in evidence that Elma, wholives in the neighbouring village, has now disappeared. On theother hand, the bicycle is in the same condition in which it was whenit was stolen, and even the number is still on it. The Police Vidaneof accused’s village says that accused went about openly on thebicycle, and even came to his house on it and occasionally left it atbis house. The Police Magistrate has convicted the accused onthe one point of the non-payment of the balance Rs. 13, because“ he ought to have suspected that he was retaining stolen property.If he did-not do so, he must be a man of abnormal intelligence, as aman of ordinary intelligence and probity would have reflected thatthere was reason to believe the cycle was stolen. ”
It is important to bear in mind that the words in section 394,Penal Code, are “ knowing or having reason to believe, ” and notreason to suspect.
It has been held in India (see I. L. R. 6 Bombay 402) that theword “ believe ” in the corresponding section of the Indian PenalCode is much stronger than the word “ suspect ” and involves thenecessity of showing that the circumstances.were such that a reason-able man must have felt convinced in his mind that the property wasstolen property. It is not sufficient to show in such a case that theaccused was careless or that he had reason to suspect that theproperty was stolen, or that he did not make sufficient inquiry to .ascertain whether it had been honestly acquired. This case isapproved by Gour in paragraph 4171. Further, paragraph 4172shows that the test is, what is the state of mind of the accused.“ and not that the circumstances were sufficient to induce suchbelief in the mind of any prudent and reasonable man. The lattertest is often resorted to in the Civil law, but it has no place in thecriminal jurisprudence of this country.”
If we apply this test, and not the one proposed by the PoliceMagistrate, the fact that accused used the bicycle openly in the samecondition in which it was stolen shows to my mind that he was notconvinced in his mind that the bicycle was stolen property.
I set aside the conviction and acquit the accused.
KARTIGESU v. ALWIS