093-NLR-NLR-V-73-P.-PABILIS-Appellant-and-SUB-INSPECTOR-OF-POLICE-KAHATUDUWA-Respondent.pdf
501
PabHis r. S. /. Police, Kahaturlmm
Present: de Kretser, J.
I*. I’ABfLTS, Appellant, am/ ISUH-INSPECTOR OF POLICE,K AH AT U D U WA. Respondent•V. (.s34jG8—-M. C. Ilorana, 44012
Prn'il t’o<lc—Srrtion* 451 nint J4!>—Offence oj loitering about by rc/julcil thief—‘ Jtring ii n putcil thief"—"Loitering"—Offence of unlawful /ms.yrxsian of
house Jirtitbing instrument—" llouer-brcukimj instrument '*.
The accused-appellant wax cliurfert in that (1) being a reputed thief he wasfound loitering about a public place with intent to commit theft, and (2) he didpossess without lawful excuso nn instrument of house breaking. to wit. ajemmy.
//<■/■/. ii) thut it was open to the pro-. , ution to lend evidence of the accused'sprevious eonvietions for theft for the purpose of establishing that h« was areputed thief. 1 lie fact tlmt the oflicer who arrested him was not aware *>f hisreputation at the time of arrest was irrelevant.
tliat the word ' loiter ” means “ Iing«_-r on the way ; hang about ; travelindolently and with frequent pauses.”
that nn iron rod with n pointed end does not answer to the descriptionof a “ jemmy ” and is not primarily an instrument of house-breaking.
502
DE KRBTJsLR, .r- Jfnbt.fi* t*, y, /, />o/*rrt Ka}ntu*htwfi
ApPEAL from a judgment of iho Magistrate’s Court, Hore.ua.Ranjit Goonerntne, for the accused-appellant..
Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. ado. vuU.
February 26, I960, nr: Khetskr, J.—
The Magistrate of Horana (Mr. j. J. F. A. Dias) convicted the accusedof the two charges laid against him which were : 1…. Being a reputedthief did loiter about a public place to wit Halpita with intent to committheft.. .2Did possess without lawful excuse an instrument of house-
breaking to wit a jemmy. He sentenced the accused on count 1 to sixmonths’ R.I. which was something ho did not have the right to do forthe offence if it was to be x>unishcd with imprisonment could only bewith imprisonment up to three months. On count 2 the sentence wassix mouths’ R.I. and was consecutive to the sentence on count 1. Theaccused has*appealed.
Counsel for the appellant urges three matters :1. That it is not
proved that the accused was a reputed thief. 2. That it is not provedthat he loitered. 3. That the weapon he was in possession of was nota jemmy and that it is not established that it was intended to be used forhouse-breaking.
Counsel for the appellant cites the case of Perera v. The Police1 inwhich de Silva J., said “ It is not open to the prosecution to leadevidence of previous convictions to establish the fact that accused is areputed thief. The evidence available for the prosecution must beevidence of the reputation of the accused apart from previous convictions.”He also cited the case of Mansoor ». Jayatilleke 2 in which Dias J., said
“ The words of section 451 are ‘Being a reputed thief’, that is to
say the burden is on the prosecution to show that at the time the accusedloitered or lurked about a public place ho had the reputation of being athief. The prosecution does not discharge that burden by first arrestingthe accused on suspicion and then ex p>ost facto establishing that he was athief, a fact which was unknown at the time that the alleged offence wascommitted.”
• These two cases were before Tennekoon J., when he heard the appealin S.C. 742/67 S. C. Minutes of 6.11.67 in which case the prosecutionliad proved five previous convictions for theft and the fact that theaccused was sd I. R. G. and known as such to the Police officer whoarrested him in proof of the fact that he was a reputed thief. Tennekoon J.said “ The proposition that the reputation of being a thief must exist at
»' (1940) 32 C. L. IK. 108:. » {1947) 48 *7. L. R. 308.
DE KRETSER, J.—Pabilie v. S. I. Police, Kahaluduwa503
tho time of loitering is unexceptionable but with respect it seems to methat it is irrelevant that the arresting officer did not know that the
accused had such a reputation at (he time of arrestI cannot see
why the fact of the accused being a reputed thief at the time of loiteringwhich is one of the ingredients of the offence under section 451 of thePenal Code cannot be established independently of the arresting officer’sknowledge of the accused's rejmtation.” In agreeing with Tennckoon J.it appears to me that the error in the order of Dias J. is that Dias J. haslost Sight of tho fact that the reputation of the accused at the time heloitered is not dependent on the fact that the police officer was aware ofit. e.g. If it is an offence for a Boy Seoul to loiter in a public place tliefact that a police officer who observed him loitering is unaware that he isa Boy Scout does not make him any the less a Boy Scout while lie was soloitering.
What do the words in the section “ being a repuled thief ” connote? Theadjective “reputed” according to the dictionary means “generallyaccounted or sujiposcd to be such A reputed thief therefore is onegenerally supposed to be a thief or generally accounted a thief. And itappears to me that there is no more certain way of a person beinggenerally accounted a thief than to be convicted for theft more thanonce ; and it appears to me as it did to Tennckoon J. that a person whohas repeated convictions for theft is a thief who cannot but have thereputation of being a thief. It appears to me that de Silva J. had lostsight of this when he gave the dictum which I have quoted in this Order.In my view therefore it is open to the prosecution to lead evidence of aman’s previous convictions for theft for the purpose of establishing thathe is a reputed thief at the time he committed the offence, and the factthat the officer who arrested him is not aware of his reputation at thetime of arrest is irrelevant. In the instant case the evidence is that of'1’. C. 7241 Poicra who said “ I know the first accused well and I identifiedhim. I am aware that he has previous convictions for theft and that lieis an T. R. C. This evidence in my opinion clearly establishes that at thetime of arrest the police officer was aware that the man was a reputedthief because he was personally aware that the man had previousconvictions for theft and was an I. R. C.
It appears to me therefore that in any event the fact that the accusedwas a reputed thief was proved by the prosecution.
In regard to loitering the relevant evidence of tho police officer is asfollows: “I remember 12.3.G7. At about 3.15 a.m. 1 was patrolling
the Hulapita areaI saw the flash of a torch in our direction. We
stopped. Then three men came and when they were about twelve yards
away from us I flashed my torch at themwhen I ordered them to
stop they started running.”
The word “ loiter ” is defined in the Concise Oxford Dictionary jusmeaning to “ linger on the way ; hang about ; travel indolently and withfrequent pauses ", Having regard to this definition it is clear that the
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DE KRETSER, J.—Pabiliv v. S. I. Police, Kahatutvwa
evidence of the prosecution docs not establish that the accused was .(ottering on this day. • The charge under section 451 therefore fails and Iset aside the conviction and sentence imposed by the Magistrate.
In regard to count 2 Counsel submits that there is no evidence thataccused was in possession of a “ jemmy “ as alleged in the charge. Theevidence is that there was in his possession "an iron rod with a pointedend ”. Under cross-examination it- was got out that the other end wasa blunt one. It is submitted this is not a jemmy which is defined in thedictionary as a " crowbar used by burglars and usually made in sectionsThe Magistrate who had the advantage of Seeing the weapon has made nofinding in regard to it. ft appears to me that an iron rod with a pointedend does not answer to the description of a jemmy. The importance ofthe distinction is that the burden is on the prosecution to establish thatthe instrument found in the possession of the accused is an instrument ofhouse-breaking and in order to discharge that burden it would be suffi-cient for the prosecution to prove that the instrument is commonly usedfor house-breaking. Where however the instrument was ordinarily usedfor a purpose other than house-breaking but could also be used for house-. breaking, in order to discharge the burden there should be proof that theinstrument was intended to be used for house-breaking. Unlike a jemmyan'iron rod with a pointed end is not primarily an instrument of house-breaking. The constable can only say that it was possible to put it tothat use, and under cross-examination he says that he does not knowwhether it was not used for finding out the depth of soil for cultivationof vegetables. The circumstances in which the accused was arrested whichI have set out earlier in this order do not lead to the irresistible inferencethat the accused was armed with this rod for the purpose of house-breaking. In the result this charge too must fail. The conviction andsentence of the accused is set aside and his appeal is" allowed.
Appeal allowed.