073-NLR-NLR-V-27-NAMBIAR-v.-FERNANDO.pdf
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1925.
Present: Jayewardene A. J.
NAMBIAR v. FERNANDO.752—P. C. Kalvtara, 9,086.
Evidence—Dishonestly retaining stolen property—Knowledge or belief—Confession.
In a prosecution for dishonestly retaining stolen property know-ledge or belief on the part of the accused that the property wetsstolen must be proved.
A statement the police made by the accused, giving an accountas to how he came by the property, different to that given in Court,is inadmissible.
A PPEAL from a conviction of the accused of dishonestlyretaining a stolen shirt under section 394 of the Penal Code.The Police Magistrate, while accepting the accused’6 explanationthat the shirt was left with him by a customer who had come totake tea at his boutique, as security for money due to him, con-victed him on the ground that he must have suspected that the shirtwas stolen.
No appearance for accused, appellant.
January 16,1925. Jayewabdene A.J.—
In this case the accused has been convicted of dishonestlyretaining a linen shirt, the property of Mr. Proctor Jayasinghe, anoffence under section 394 of the Penal Code, and sentenced to paya fine of Rs. 100. In the petition of appeal objection has beentaken to the conviction on two main grounds: first, that there’is noevidence that the accused knew or had reason to believe that thearticle in question was stolen; and secondly, that the learnedMagistrate has wrongly admitted in evidence a statement amountingto a confession in law made by him to a Police Officer. Both theseobjections are entitled to prevail. The learned Magistrate appearsto accept the accused's explanation that the shirt in question wasleft with him by a customer who had come to take tea at his boutiqueas security for the amount due to the accused. But he thinksthat as the shirt was not completely stitched and unwashed theaccused ought to have suspected that it was stolen. He also believesthat customers leave articles in this way with the accused or hiswife and they are accepted by them without asking any questionsas they stand to benefit by so doing. They do not care whetherthe articles were stolen or not and make no inquiries. Under
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section. 394, it is necessary for the prosecution to prove that theaccused knew or had reason to believe that the property retainedby him was stolen. Mere suspicion on the part of the accused isclearly insufficient. Knowledge or belief on his part must be proved.The Court nowhere finds that the accused had the knowledgeor belief required by law. The learned Magistrate merely findsthat the accused might have suspected that the shirt was stolen,or was indifferent as to whether it was stolen or not. In theabsence of a finding that the accused knew or had reason to believethe shirt was stolen, the conviction cannot be sustained.
As regards the second objection, it appears that'when the accusedwas questioned by Police Constable Nambiar as to how he got theshirt, he stated that he got it stitched by a tailor at Beruwalacalled Sardial Silva. Sardial Silva was questioned and deniedhaving done so. The accused now admits that this statement isfalse and says he made it through fear. The Proctor for the accusedobjected to this statement being given in evidence, but the learnedMagistrate accepted it under section 27 of the Evidence Ordinance.In his judgment he attaches great importance to this statement.But in my poinion, this statement, which, according to the viewprevailing in Ceylon, amounts to a confession, is not admissibleunder section 27 of the Evidence Ordinance. This section refersto “ facts ” discovered in consequence of a confession made to aPolice Officer and renders them admissible in evidence.
The Magistrate seems to think that in consequence of theconfession made by the accused, the fact that- Sardial Silva did. not stitch the shirt for the accused was discovered, and so the state-ment became admissible under section 27. I am unable to takethis view. “ The fact ” discovered must, in my opinion, be itselfrelevant to the case against the accused. Here the fact thatSardial Silva did not stitch the shirt was not relevant,to the chargeagainst him, it was only relevant, if at all, to prove that the accusedhad given a different account when he was first questioned by thepolice. Such a statement is inadmissible under our law, see TheKing v. Kalu Banda} On this ground too, the conviction is bad.
In the circumstances, I set aside the conviction, and acquit theaccused.
Set aside. 1
1925.
Javewab?d&KE A.J.
Nambiar v,Fernando
1 (1912) 15 N. L. B. 422.