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Present: Akbar J.
KING v. THOMAS APPU.47—D. C. (Crirn.) Colombo, 9,041.
Receiving stolen property—Reasonable explanation by accused—Guiltyknowledge—Burden of proof—Penal Code, s. 394.
Where, in a charge of receiving stolen property, the Court drawsa presumption of guilty knowledge and the accused gives anexplanation, which appears to be reasonable, the prosecution, if itis to succeed, is bound to prove from other facts,whether in conjunc-tion with the accused’s explanation or not, either that the accusedhad guilty knowledge or that the explanation is false.
PPEAL from a conviction by the District Judge of Colombo.The facts appear from the judgment.
L. A. Rajapakse, for accused, appellant.
J. TP. R. llangakoon, C.C., for respondent.
July 9, 1929. Akbab J.—
This appeal is. from a conviction on a charge of receiving stolenproperty, namely, a magneto and a battery, knowing them to bestolen property, and a sentence of 9 months’ rigorous imprisonmentpassed on the accused.
The magneto and battery belonged to one Mr. Pestonjee, and hestated that the battery was numbered 72505 and the magnetoF. U. 4. These numbers were given to the Police at the time of thetheft, which occured on September 13 to 14 last, and the stolenarticles were valued at Rs. 400 by Mr. Pestonjee. Mr. Pestonjeehad a motor car cleaner named Albert in his employment who waspaid weekly. It appears that this man Albert desired to be amonthly paid servant, and a week before this incident he was toldthat he had to leave as there was a permanent man. The batteryand magneto were fixed in a lorry. Immediately after the discoveryof the theft Albert did not come to work and he was arrested.As a result of a statement by him the house of the accused—who isthe occupant of two rooms known as the Avasire Stores used forthe supply of motor oil and the repairs of tubes and tyres—wassearched and the magneto was discovered under a bed in the secondroom and the battery was found afterwards fixed to a motor busbelonging to one Basnaike who has given evidence. The discoveryof the magneto was made on September 21.
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Albert, who was charged separately for theft, has given evidencein this case. He admits that- he removed the battery and themagneto belonging to his employer Pestonjee at the instigation ofthe accused, who promised to give him Rs. 15 and asked him to goaway to his village. The accused’s story is that he had knownAlbert for over a year as the owner-driver of a motor bus, thatAlbert was in the habit of buying things from him, and that hebought the battery and the magneto from Albert for Rs. 100.The accused has produced no receipt to support his story. Thebattery which was found fixed to Basnaike’s bus bears the No. 250.The other, two numbers have been obliterated according to thereport of the Government Analyst. Basnaike, who has givenevidence, says that he hired this battery leaving his old battery tobe repaired and re-charged by the accused. The accused wantedRs. 75 as the price of this battery, but Basnaike said that he wouldtry it first and then buy it. He further says that he paid Rs. 25for the repairing and charging of the battery and for the hire ofthe new battery. Basnaike admitted that he had got otherbatteries re-charged for Rs. 3, and that Bousteads charged Re. 1 aday for the hire of a battery, tad that it will cost from Rs. 20 toRs. 25 to repair a cell. The fixing of the stolen battery to Basnaike’sbus took place at 8 p.m. at night, and it should be noted that he gavehis old battery to the accused to be repaired, not by him but bysome firm which did this kind of work. The accused’s Counselcontends that the accused had no guilty intention, and all the au-thorities usually cited in a case of this sort, including Lord Reading’sdictum in R.v. Abramovitch1 were cited at the argument, and alsothe case of Perera v. Karunaratne.'1 I think that it will be as wellfor me to restate the propositions of law which are based on thesecases, especially in view of a recent decision of mine in a P. C.Colombo case decided last month. When an accused is chargedwith committing an offence under section 394 of the Penal Code,the burden of proving that the accused dishonestly received thestolen property, knowing or having reason to believe that it wasstolen property, is of course always on the prosecution. This guiltyknowledge must be proved beyond all reasonable doubt. Butunder the Evidence Ordinance (see section 114, illustration (a)) ifthe accused is in possession of the stolen property “ soon after ”the theft the Court may presume that he is either the thief orreceived the goods knowing them to be stolen unless he can accountfor his possession. It will be seen from the case of Attorney-Generalv. Rawther3 that the FuU Bench laid down the interpretation of thelaw on the subject as follows. The first question the Court has todecide is whether it may draw the presumption in the circumstances.
'(1015) Si L.J.K.B. 308.
325 N. L. R. 385.
2.9 G. L. R. 4li.
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It is significant that the word used in the illustration is “ may ” andnot “ must. ” The word “ may ” was used adpsedly, because thedrawing of the inference must depend on all the circumstances ofthe case, particularly the nature of the article stolen, whether it isone which passed readily from hand to hand or .not. When theCourt decides to presume the guilty knowledge the burden is caston the accused to account for his possession. If the accused givesan explanation which appears to be reasonable, although the Courtmay suspect that it is not true, in such an event the accused isentitled to an acquittal unless the prosecution can prove beyondany reasonable doubt from other facts whether in conjunction withthe accused’s explanation or not that either the accused had theguilty knowledge or that the explanation of the accused is false.(See R. v. Norris1 and the remarks‘of Bertram C.J. at page 392 inAttorney-General v. Rawther (supra).) So that an accused may beconvicted in spite of his explanation if the Court is of opinion thathis explanation is not a reasonable one in the circumstances, or evenwhen it is prima facie reasonable if the prosecution proves othercircumstances which, whether in conjunction with the accused’sexplanation or not, prove beyond any reasonable doubt that theaccused had the guilty knowledge., In . the Police Court Casereferred to above by me, the Police Magistrate came to theconclusion that the accused’s explanation was not a reasonableone because an ordinary prudent reasonable man in the cuircum-stances of that case would have suspected that the property wasstolen. I pointed out that according to the decisions in the IndianCourts the test was no$ the one adopted by the Police Magistrate,but that the Court should consider whether the accused felt con*vinced in his own mind that the property was stolen, and I cameto the conclusion from the fact that the accused had used thestolen bicycle openly for many months in the same condition inwhich he received the bicycle that he was not so convinced. If weapply this test in this case, I think the judgment of the DistrictJudge was right, though not for the reasons given by him. What Ihave to decide first is whether a Court is entitled to draw the presump-tion in section 114 of the Evidence Ordinance. Considering thenature of the articles stolen and the interval between the theft andthe possession, I have no hesitation in holding that such a presump-tion can be drawn. The next question is whether the explanationgiven by the accused is a reasonable one. Assume that it is ; thisdoes not conclude the case, because the prosecution has calledAlbert and Basnaike and proved other facts. Albert seems to bea common cleaner and was' never the owner of a bus. I cannotbelieve that the accused, who keeps a small store consisting of tworooms, one of which is used for sleeping purposes, obviously for
M1917) L. J.K.B. 810.
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the repair and vulcanizing of motor tyres and for the supply ofmotor oil, could*have paid such a large sum as Rs. 100 for amagneto and a battery to a person of the standing of Albertsimply because he thought he was a bus owner. He hadno reason to conclude that Albert was a bus owner forthe simple reason that he could never have seen Albert’^mythical bus. The evidence further shows that the numbers onthe battery have been obliterated. It is true that the accused saysthat he did not know who did it, whether by Albert or by Basnaike.But the fact remains that the stolen property was found in thepossession of the accused a week after the theft, and that he got ridof the battery to Basnaike within a few days after the theft, namely,September 18. Basnaike’s evidence is very unsatisfactory, andpoints to the conclusion that he bought this battery, for which theprice asked according to Basnaike was Rs. 75, for Rs. 25 and the oldbattery. Albert’s evidence, if it is accepted, is conclusive against theaccused, but as he is an accomplice his evidence cannot be acceptedin its full significance ; but I think, reading the evidence as a wholethat the explanation of the accused as to how he came to possessthis stolen property cannot be true, and that the prosecution hasproved beyond any reasonable doubt that the accused had reason*to believe that it was stolen. In the result I affirm the convictionand dismiss the appeal.
KING v. THOMAS APPU