081-NLR-NLR-V-22-NAIDE-v.-PACKEER-et-al.pdf
( 284 )
1920.
Present: Schneider A.J.NAIDE v. PAGKEEB et oil.
}714, 715—P. C. Kandy, 4,024.
Misjoinder of charges—Theft of bull—Possession of beef.
Where there is no identification of the- beef which is found in aperson’s possession with being the'flesh'of the stolen animal, itis an irregularity to join a oharge of theft of the animal togetherwith a oharge of being in possession of beef which cannot beaccounted for satisfactorily.
rpHE facts appear from the judgment.
Croos-Dabrera, for the appellants.—There has been a misjoinderof accused and charges. The second accused is only charged withhaving been in possession of beef, and the third and fourth accusedwith possession of beef and theft of a calf. There has been no identi-fication of the beef. There is nothing to show that the flesh foundiB that of the stolen animal. The accused have been seriously pre-judiced by the joinder of the charges. The va’lue of the calf is onlyRs. 12, and if they had been charged only with theft, the PoliceOourthad no jurisdiction to try it.
Counsel cited Police Sergeant v. Satnijah,1 Keerala v. Appuhamy?William v. Dinoris,3 and Appuhamy v. Appuhamy.*
October 12, 1920. Schneider A.J.—
In this case five persons were charged with beina concerned withthe theft of a bull calf. The first and fifth accused are said to bestill in concealment. The evidence was that the animal in question,which was the property of one Appu Naide, had-been removed bythieves on the night of. July 10. One Ran Naide gave., evidence to
1 (1914) 3 Bed. Notes of Cases 61.> (1919) 6 O. WtB. 366.
1 (1919) 6 C. W. R. 338.* (1927) 4 C. W. R. 288.
( 286 )
the effect that he saw the third, fourth, and fifth aooused drive ablaok bull which he was unable to identify as the property of AppuNaide. A search was instituted, and beef was found, accordingto the evidence, in the house of the first, second, third, and fourthaccused. Upon this evidence the Police Magistrate charged thesecond accused with having been found in possession of beef forwhich he was unable to aocount to the satisfaction of the Magistrateunder Bection 21 of the Butohers* Ordinance,. 1893, and the thirdand fourth accused with the theft of the bull calf and also of un-lawful possession of beef under seotion 21 of the Butchers’ Ordinance.He acquitted the second accused, and convicted the third and fourth,and sentenced them to three months’ rigorous imprisonment each.The value of the bull calf is given as Rs. 12. If the charge againstthe third and fourth accused had been only of theft of the animalin question, it is quite obvious that the Police Magistrate hadno jurisdiction to try that offence. Under the provisions of theVillage Communities Ordinance the offence is one triable only ina Village Tribunal, the jurisdiction of which is exclusive. Theoffence of being in possession of beef for which a person cannotsatisfactorily account is undoubtedly triable in the Police Court.But objection has been taken to the conviction on the ground thatthere had been a misjoinder of accused and also of charges; thatwhile the third and fourth accused were charged with theft, andalso of being in possession of beef for which they could not satis-factorily account, the second accused was charged only with beingin possession of beef. But it seems to me that this objection neednot be considered in this' case, because the second accused hasbeen acquitted. The objection as regards the misjoinder of charges,is clearly fatal t9 the conviction. It has been, pointed out in anumber of cases, that where there is no identification of the beefwhich is found in ajperson’s possession with being the flesh of astolen animal, that it is an irregularity to join a charge of theftof the animal^ogether with a charge of being in possession of beefwhich cannot be accounted for satisfactorily. The evidence inthis case clearly fails to connect the beef which was found in thehouse of the third and fourth accused with the animal which AppuNaide had lost. I would refer to the case of Police Sergeant v.Samijah,1 where the l^w on the subject has been clearly laid downby Wood Renton C.J./^nd also to the cases of Keerala v. Appu-homy2 and William v. Dinoris,3 where the principle laid down in thedie of Police Sergeant v. Samijah1 has been followed. I would,therefore, set %side the conviction, but without prejudice to anyfurther proceedings which may be considered necessary to be takenin the interests of justice.
Set aside.
i (1914) 3 BaL Notes of Cases 61.8 (1919) 6 C. W. R. 338.
8 (1919) 6 0. W. R. 36$.
1920.
Schneider
AJ.
Naide v.Paekeer