Sri Lanka Law Reports
(1978-79) 2 S.L.R.
Officer-in-Charge, Kandy Police
COURT OF APPEAL.
VICTOR PERERA, J. AND TAMBIAH, J.
C.a. (s.c.) 122/78—m.c. Kandy, 86877.
NOVEMBER 21, 1978.
Penal Code, section 394—Charge of retaining stolen property—Reasonableexplanation by accused—Burden on prosecution to prove its falsity.
O.J. C., Kandy Police v. Selladurai(Tambiah, J.)
Where an accused charged with retention of stolen property gives areasonable account of how he came by it, than it is incumbent on theprosecution to show affirmatively and beyond reasonable doubt that suchaccount is false.
Case referred to
(1) Kandiah v. Podisingho, (1921) 23 N.L.R. 337.
V. S. A. Pullenayagam, with D. Hattotuwa and A. Chinniah, for theaccused-appellant
Anil Silva, State Counsel, for the Attorney-General.
November 21, 1978.
The accused-appellant in this case has been found guilty ontwo counts—
That on or about 17.12.1972 he did dishonestly retainstolen property knowing or having reason to believe that itwas stolen property, to wit: a “ Phillips ” radio valued atRs. 650, belonging to one Mrs. Pillai, an offence punishableunder section 394 of the Penal Code.
That in the course of the same transaction and at thesame time and place he did dishonestly retain stolen propertyknowing, or having reason to believe that it was stolenproperty to wit: a “ Unic ” radio valued at Rs. 680, belongingto one A. P. Perera, an offence punishable under section 394of the Penal Code.
The accused was sentenced to three months’ rigorous imprison-ment on count (1) and three months’ rigorous imprisonment oncount (2).
The owners of the two articles in question, have testified thatthe said articles were stolen from their respective houses on22.9.72 and on 31.19.72. They also identified the two radio sets astheir property.
The Inspector of Police, Velusamy, stated in evidence that thetwo articles were recovered from the accused’s room on 17.12.72.
The prosecution has therefore established that the two articleswere stolen property, and that the accused has been in exclusivepossession of them. The nature of the articles is such that itcannot be said that they readily pass from hand to hand in theeveryday business of human life; the prosecution has thereforealso established recent possession of stolen property.
Sri Lanka Law Reports
(1978-79) 2 S.LR
The prosecution's own witness, Ramasamy Selliah, in his evi-dence stated that he sold the two radio sets to the accused atRs. 500 each ; he gave no receipts to the accused; that he wasunaware that the two radio sets were stolen property.
The accused, when he was called upon to give evidence statedthat the witness Selliah sold him the two radio sets, he paidRs. 500 for each radio; he has had prior dealings with Selliah ;he himself did not know that they were stolen articles.
The question then arises, whether the accused has given areasonable account for his possession of the stolen articles. Inthe case of Kandiah v. Podisingho, (1) at 338, De Sampayo, J.stated—
“ With regard to the law it has been pointed out in manyrecent judgments that: ‘ When a man, in whose possessionstolen property is found, gives a reasonable account of howhe came by it. as by telling the name of the person fromwhom he received it, and who is known to be a real person,it is incumbent on the prosecution to show that account isfalse ”
This the prosecution must do affirmatively and beyond reason-able doubt.
The prosecution’s own witness, Selliah, supports the accused’saccount of how he came by the two radio sets in question.
The conviction and sentence is set aside and the accused-appellant is acquitted.
VICTOR PERERA, J.—I agree.