115-NLR-NLR-V-03-MUHAMADU-HANIFA-v.-BANDIRALA-et-al.pdf
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MUHAMADU HANIFA v. BANDIRALA el al.
P. C., Kurunegala, 10,064.
Dishonest retention of stolen property knowing the same to be stolen—Evidence Act of 1895, s. 14—Presumption of theft arising frompossession “ soon after ” theft.
Retention implies an innocent receipt in the first instance, whichbecomes a dishonest retention after the receiver has come to knowor has good reason to believe that the property so received andretained is stolen property.
Where certain property alleged to have been stolen was found inpossession of the accused eighteen months after the alleged theft—Held, that such possession was root possession “ soon after ” thetheft, so as to support the presumption of theft or dishonest reten-tion of stolen property under section 14 of the Evidence Act of 1895,illustration 1.
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HE facts of the case are fully set forth in the following iudementof the Supreme Court.
Bawa, for accused, appellant.
12th January, 1899* Wxthbbs, J.—
On the 22nd November last the prosecutor informed the PoliceCourt of Kurunegala that about eighteen months previously abundle of new cloths had been stolen from his possession at Ela-talawa, and that some, if not all, of those cloths, together witha yard measure, belonging to the prosecutor’s brother, had beenfound in the possession of the second accused, appellant.
Mr. Dunuwille, the Police Magistrate, inquired into the matter.It appears that the two accused are brothers-in-law, and occupytwo separate rooms under one roof in a village called Kuliya-pitiya, some distance off.
On the 20th November this house was searched under awarrant by the Korale Arachchi, Kiri Banda. In the room of the. first accused, inside a wooden box, were found various articles ofclothing, such as comboys, chintz cloth, Cannanore cloth, white
1899.
January 12%
1809.
January 12.Wbbbbs, J.
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doth, and also some rolls of handkerchiefs. In another box, inthe same room, were found some articles of clothing, new andused;
In the room of the second accused were found two new comboys,three sarongs, twenty-four pieces of chintz, all new, and a yardmeasure with Tamil characters on it. Those were in a box. Alsotwo new soman cloths, two new pieces of chintz cloth, and one ortwo articles of clothing were found in another box. There werealso found in the room occupied by the first accused two canvasbags. The prosecutor swore that the cloths produced by theKorale Arachchi were new cloths in the bundle stolen from himat Elatalawa, eighteen months ago, and that the two canvas bagsand the yard measure were in the bundle at the time that it wasstolen.
The officer who executed the search warrant deposed thatthe accused disclaimed all right to the new articles of clothingfound in their respective rooms. After examining the prosecutorand this officer, the Magistrate charged the two accused with dis-honestly retaining the articles of stolen property identified bythe prosecutor, having reason to believe that the same were stolenproperty under section 394 of the Ceylon Penal Code. The chargemade no mention of the value of this property, and the convictionmade no mention of the value either. If the value of the allegedstolen property exceeded a hundred rupees, the Police Magistratewas not competent to try the case. The prosecutor, however,swore that the articles of his found in the possession of the accusedwere worth a hundred rupees. He valued the articles in a lump,instead of valuing each particular article as he should have done.Thus, the Magistrate may perhaps be said to have had jurisdictionin the matter.
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Without giving any reasons the Magistrate has found the accusedguilty of the charge which he framed against them, and hassentenced the accused to six months’ rigorous imprisonment each.
Assuming, as I think it may fairly be done, that the goods foundare the goods stolen from the prosecutor eighteen months ago,the only evidence against the accused is the fact of the stolen articlesbeing found in their possession.
The case for the defence, I may say, was that these articles hadbeen introduced into the house on the night of the 19th Novem-ber, with the connivance of the headman.
The question is, Can this conviction be justified, or, in otherwords, is there a legitimate presumption that the accused stole orreceived the property with guilty knowledge ? Of the offence of
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dishonest retention, retention implies an innocent receipt in the 1809.first instance, which becomes a dishonest retention after the January it%receiver has come tc know or has good reason to believe that the w ~*^ jproperty so received and retained is stolen property. The 14thsection of the Evidence Act of 1895 enacts as follows:—“ The“ court may presume the existence of any fact which it thinks“ likely to have happened, regard being had to the common course“ of natural events, human conduct, and public and private“ business, in their relation to the facts of the particular case.”
And the first illustration is this :—“ The court may presume that“ a man who is in possession of stolen goods soon,, after, the theft“ is either the thief or has received the goods knowing them to“ be stolen, unless he can account for his possession.”
If he is not found in possession of stolen goods soon after thetheft, the prisoner will not be bound to account for the possessionof them. The language of this illustration appears to me to bestricter than what one finds in English authorities. There wemeet with the words “ recent possession ” and “ recently stolengoods,” and I regard the expression “ recent ” to be more elasticthan the expression “ soon after.” In Regina v. Partridge {7 C.ds P. 551) Patteson, J., observed that the length of time in oasesof this kind is to be considered with reference to the nature of thearticles stolen ; if they are such as pass from hand to hand readily,two months would be a long time. In another case Bayley, J.held that the prisoner could not be called upon to account for themanner in which the stolen property came into his possession whenit was found there sixteen months after the larceny (2 C. ds P. 459).
What the nature of the property was does not appear. I cannotbut come to the conclusion that no presumption in this case canbe made against the prisoners. They cannot be said to be in posses-sion of the stolen goods “ soon after ” the theft. I therefore setaside the conviction and acquit the accused.
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