052-NLR-NLR-V-07-PERERA-v.-SILVA.pdf
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1904.April 12.
PEBERA v. SILVA-P.G., Golombo, 85,630.
Dishonest retention of stolen property—Innocent receipt in the first instance—Evidence of theft and dishonest retention—Penal Code, s. 894.
Middleton, J.—1 cannot concur with Withers, J., in the opinion(expressed in Hanifa v. Bandirala, 8 N. L. R. 267) that the offence ofdishonest retention of stolen property implies an innocent receipt in thefirst instance; but a dishonest retention may be complete without anyguilty knowledge at the time of receipt.
Where it was proved that the goods' seized in possession of the accusedwere the property of Whiteaway, Laidlaw & Co.; that they were. quitenew, and were not sold to the accused; that the accused was employed inthe shop of Whiteaway, Laidlaw & Co.; that he admitted that the goodscame from their shop; that he did not make good his statement that hehad bought the goods there, and that he is in possession of other newgoods which another shopkeeper claimed,—
Held, that upon these facts it was reasonable to conclude that thegoods' in question were stolen from Whiteaway, Laidlaw & Co.; and thatthe accused knew them to be stolen. goods and dishonestly retained them.
T
HE accused was convicted of dishonestly retaining certain stolenproperty belonging to Messrs. Whiteaway, Laidlaw & Co.,
and knowing the same to be stolen property.
The complainant, a police constable, said that seeing a boy handa watch to the accused in York street, Colombo, he walkedup to the accused, and as he knew him to be an employee at White-away, Laidlaw & Co.’s shop arrested him on suspicion, left him atthe police station and went to Whiteaway Laidlaw Co.’s with thewatch, where the manager claimed,, it. The complainant thenwent with the accused to his house in Kotahena, and on searchmade found in an almirah opened by the accused a hat, a pairqf. boota, two watches, and other articles, which were all claimed byWhiteaway, Laidlaw & Co. The prosecution could not prove thatany of the articles found jyere stolen on any particular day.
The Magistrate Mr. W. E. Thorpe gave the following judgment ;—
" The articles produced are quite new. Three new watches, anew terai hat, and a new pair of ..boots, which all belong to White-away, Laidlaw & Co. At the same time one terai and two panamas
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were found in the accused's almirah, which he admits came fromthe Apothecaries’ Company. It is unusual for a person of theposition of the accused to own two new terai hats, two newpanamas, and three new watches. The fact that he has themwants explanation. The accused is an employee of Whiteaway,Laidlaw & Co., and has access to all of these things. As it isimpossible to swear that any of the things was stolen on anyparticular day, a charge under section 370 for recent possessionwould necessarily fail. I have therefore charged him under' section 394. The accused is unable to give any satisfactoryexplanation. On the 5th March he said he bought them fromthe firm, and that he would call the assistants who sold themto him as his witnesses. But he does not call them. He producesthree bills of Whiteaway, Laidlaw & Co., of which two areadmittedly genuine, but they do not refer to any of the articlesproduced in Court. The accused has failed to show that hebought these articles. He has not called the shop assistants. Headmits the articles came from Whiteaway, Laidlaw & Co. 1have no doubt that they were stolen, and that the accused hasretained them knowing that they were stolen, though the exactdate of the theft cannot be proved ”.
The accused appealed. The case was argued on 30th March,1904, before Middleton, J..
Domhorst, K.C., for appellant.—The accused is charged withdishonest retention of stolen property. Such a charge impliesthat he came by it innocently (Hanifa v. Bandirala, 3 N, L. R.267). The attempt to prove that he himself stole it is thereforecontradictory of the charge. Such evidence is not admissibleagainst him. There is no evidence that the property was at allstolen from Whiteaway, Laidlaw & Co. The accused is entitledto an acquittal.
Wijeykoon, for respondent.—-There is evidence of theft by some-body, who may be either the accused himself or some one else.It is well proved that, whoever stole the property, the accusedhad possession of it and continued in possession dishonestly.
Cur. adv. vult.
12th April, 1904. Middleton, J.—
The accused in this case was convicted of dishonestly retainingcertain goods, the property of Whiteaway,’ Laidlaw & Co., stolenfrom them, knowing the same to be stolen, under section 394 ofthe Penal Code.•
The points taken before me on behalf of the accused were—first,that there was no evidence to show that the goods were in fact
1904.April 12,
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1004. stolen; second, that an "offence under section 394 implied an.
April 12. honest receipt followed by a subsequent dishonest retention, andMidduston, Withers, J. ’s judgment in a case reported in 3 N. L. R., p. 267, wasJ- ' relied on. The accused was first charged with stealing, but thecharge was altered to one under Section 394.
As regards the first point, the evidence shows that the goodswere the property of Whiteaway, Laidlaw & Co., that they cannotsay they were stolen at any particular time; that they were foundin the possession of accused; that they were not sold to theaccused; that the accused alleged they were sold to him; and thathe was employed in the shop of that firm. In the ordinary courseof business goods do not leave a shop unless they are sold tosome one. The infirmative hypothesis that they were sold tosome one else or sent out for sale elsewhere is rebutted by theaccused’s statement that he purchased them himself.
It is not an unreasonable presumption upon these facts to saythat they were stolen from the shop by some one, and I think anyjury would find so upon those facts.
The accused stated that he bought them within the last threemonths and produced slips to show it, which do not refer tothem, and proposed to call shopmen who sold the goods to him,but afterwards declined to do so. There is no direct evidence toprove that he actually stole them, although this perhaps might beinferred, but the evidence shows that his statement as to how hebecame possessed of them is untrue, that he was dealing with oueof the watches in a suspicious fashion, and he is in possession ofother new goods claimed by another firm, which, to my mind, isevidence of guilty knowledge. Upon these facts, I think, the-accused was properly convicted under section 394.
As regards the point that the offence of dishonest retentionimplies an innocent receipt in the first instance. I cannot concurin this. A man might both receive and detain dishonestly, andeven if in this case the accused did receive these goods dis-honestly, he certainly also detained them dishonestly. I wouldagree that a dishonest retention may be complete without anyguilty knowledge at the time of reception ( Madras H. C.Rulings, in 4, Madras H. C. Reports, Appendix, p. xlii),.
, I therefore affirm the conviction.