OFFICER-IN-CHARGE, POLICE STATION NORWOOD
COURT OF. APPEALP. RAMANATHAN, J.. ANDP. R. P. PERERA J.
– CANO. 48/84
M.C HATTON NO. 29864.,
DECEMBER 09. 1987 AND JANUARY 20. 1988
Criminal LAw — Thefts of made tea — Dishonest retention or receiving intopossession. — Penal Code. Sections 370and 394. •<
.The prosecution failed to identify the made tea produced in the case asStockholm Estate tea and there was no cogent evidence that the tea in questionwas stolen tea. Hence at the end of the prosecution case the'accused had nocase to meet and he should have been acquitted. Where there is no' evidence atthe close of the prosecution case that the crime alleged had been committed bythe accused the case .should be stopped as there, is no case for the accused toanswer.
' Queen v. ‘Kularatne 71 NLR 529
Reg. v. Galbraith (1981) 73 C. L fl. 124
APPEAL from judgment of the Magistrate's Coun oi nation
E R. S: R. Coomaraswamy P. C. with Chula de Silva, and Gamini Jayasinghe foraccused — appellant.
Kumudhini de Silva. State Counsel lot the State.
Cur. adv. vult.
March 24. 1988PER ERA J.
The accused appellant in this case was charged in theMagistrate's Court of Hatton on the following counts:
that between 16.10.82 and 19.10.82, the accused beingah employee of the factory of Stockholm Estate, committedtheft of 180 kilogrammes of Made Tea valued atRs. 5,400/- from the possession of J. S. B: Ratnayake,
Superintendent — an offence punishable under Section370 of the Penal Code.
' In the alternative that on J6.10.82, the accused dishonestlyretained or received jpto his possession 26 kilogrammes ofstolen Made Tea, valued, at Rs 780/- which was in thepossession of J. S: 6. Ratnayake, knowing or having reasonto believe the same-to be stolen property ~ an offencepunishable under Section 394 of the Penal Code.
After trial the learned Magistrate found the accused guilty ofboth charges and sentenced the accused to a term of one yearsRigorous Imprisonment suspended for five years, and a fine ofRs. 500/-. The present appeal is against this conviction and thesentence imposed.
The prosecution case was briefly as follows: It was theeviderlce of Ratnayake, the Superintendent qf Stockholm Estate,that the accused appellant was attached .to. the factory onStocldrolm Estate. On 19:10/82 about 7.30 a.m. the accusedhad complained to him that1 out of 20 boxes of Tea, the Tea infour boxes was missing. At this time the accused was already atthe factory. Each box contained 45 Kilogrammes of tea and aKilogramme of tea was valued at Rs. 30/*. The accused'hadreported for work that' dPV at 7 a.m. and signed the watcher'sbgok and taken away the keys. Ratnayake did not know what hadhappened to the tea. He had questioned the workers who workedon the night of 18th October 1982, The accused had not workedon /the 18th. According to Ratnayake. those who worked on1 Sil 0/82 were the Assistant Factory Manager, Thiyagarajah.Sumathipala and the watcher Tikiri Banda. He then complainedto the Police regarding the loss. This witness has also stated that.there was no work on the 17th October..It must be.observed thatthe bag of Tea marked P V. was not shown to this witness toidentify it as tea from Stockholm Estate.
The prosecution also relied‘on-the evidence of a.witnessnamed Arumugam: It was Aruhriugam's evidencethat.he workedon Venture Estate. He had gone1 to/the accused's housO on16. TO/82 with Manoharan on business and purchased, tea dust
'from the accused. Around 4 p m on 16.10/82. the accused hadinformed them that he had tea which he could give them, but thetea was given to them in fact afpund 7.30 p.m. The tea was givento them in two urea bags. When they were proceeding; on theroad.'carrying these bags of tea. they were apprehended. Thiswitness also does not identify’PI. as Stockholm Estate tea./.
■ The next witness called by the prosecution, was oneShanmuganathan who stated that he resided on StockholmEstate and that on 16.10/82 he met Arumugam and Manoharantaking some thing with. them. From the‘smell which-emanatedfrom.these parcels the contents appeared to be tea. They, werecarrying two bags and he learnt from, them that they were takingtea from the tea maker's house. This. witness had later given this1information to Ratnayake the Superintendent of the Estate .Thiswitness also does not identify P1, as Stockholm Estate tea.
Manoharan who. was the-next witness called by theprosecution has testified to the effect that he worked on VentureEstate and that on 16 ,10/82. he went with Arumugam onbusiness. The aecused had told them'that he hadisome madetea: The accused.had given them two urea bags of tea.containing26 Kilogrammes, hie has identified PI. (one bag) as the tea. Hehad thereafter, handed over ther tea to one Rajah of’LakshmiStores. Although this witness had identified PI. as the bag of teawhich was delivered to Lakshmi Stores by him on that date, hehas not identified P1, as Stockholm Estate tea.; ,*
No Police Officer has given evidence for the prosecution in thiscase, and the prosecution has:closed its case with.this evidence:
.*– ’* 1 'i ‘'
It.was the main submission-of learned President’s Counselwho appeared for the accused appellant that the prosecutionhas failed to establish that the tea that was produced markedP1. was Stockholm Estate, tea. On an examination of theentirety of the prosecution evidence I find that there is merit inthis submission. None of the witnesses who testified on behalfof the prosecution have identified the contents of PI,, asStockholm Estate tea. The charge of theft must therfore in myview necessarily fail. In a criminal case it is imperative that the
identity of productions must be.accurstely proved by the directevidence which is available and not by way of inference. VideQueen vs. Kularatne (1) The (prosecution in the present case hasfailed to establish that the tea that was produced in this case was’ Stockholm Estate Tea.
In regard to the charge under Section 394 of the Penal Code' there is no evidence whatsoever to establish that the tea that was' sold by the accused appellant to Arumugam and.Manoharan wasin fact stolen tea. fh the.circumstances. rn my opinion even if theentire prosecution evidence.is accepted an essentiai ingredientof this offence-namely that the tea produced marked P1, isstolen tea- beyond reasonable doubt. This charge must alsotherefore fail.
In the present case, even if the entire prosecution evidence isaccepted, the ingredients of the two offences have not beenproved. Firstly the article P1. has not beeii identified by theprosecution witnesses, and secondly there is no cogent evidencethat the tea sold by the accused appellant was in fact “stolenproperty"
It is weM Settled law.that if there is no .evidence at the Close, ofthe prosecution case, that the crime alleged has been committedby the accused, the case should be stopped, as there .is no case.#for the accused to answer vide-Reg. vs. Galbraith (2) the learnedMagistrate has totally failed to give his mind to this vital aspect ofthis case. I am .therefore of the'opinion that this Conviction aridsentence should not be.allowed to stand. I would accordingly setaside the conviction and’tjie sentences imposed on the accusedappellent on both charges and acquit him.
RAMANATHAN. j. -1 agree.
Conviction set aside arid accused acquired.