032-NLR-NLR-V-55-S.-KATCHIMOHAMADU-Appellant-and-P.-K.-MOOYAN-S.I.-PoliceRespondent.pdf
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Katchimokamadu v. Alooyan
Present: Nagalingam A.C.J.
S. KATCHIMOHAMADU, Appellant, andP. K. MOOYAN (S. I. Police), Respondent
S. C. 1,309—M. C. Batticaloa, 13,048
Penal Code, s. 394—Receiving stolen property—Several articles in accused's possession—Different owners—Presumption of one offence only—Autrefois acquit—Criminal Procedure Code, s. 330.
.Where a person, who is found in possession of several articles belonging to
different owners, is tried and acquitted of the offence of receiving stolen propertyin respect of some of the articles, he cannot be prosecuted again for the sameoffence in respect of any of the remaining articles. In that event, he is entitledto take the plea of autrefois acquit unless there is evidence to show that the. articles were received by him on different occasions or that he cameinto possession of them at different times.
A .- .
/jlPPEAL from a judgment of the Magistrate’s Court, Batticaloa.
M. A. M. Hussein, for the accused appellant.
Cecil Gunawg-rdene, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
N'AGAl.IN'GASVr A.C.J.—Katcjiimohamadu v. Mooyan
113
May 15, 1952. jlJ^agauhGtAM A.C.J.—
A plea of autrefois acquit is taken on this appeal on behalf of theappellant. The appellant, the 3rd accused in the proceedings, andtwo others were charged in case No. M. C. Battiealoa 11,666 with havingcommitted theft of six goats belonging to one Katchimomahadu ShahulHameed and in the alternative with having retained possession of thesaid animals knowing or having reason to believe that the animals werestolen property. After trial, the 1st accused in the case was convictedof having retained stolen property and duly sentenced, while the 2ndand 3rd accused were acquitted.
In the present case bearing No. M. C. Battiealoa 13,048 the samethree accused were charged with having committed theft of three goatsbelonging to one Ismail Lebbe Seeni Mohamadu and in the alternativewith having retained possession of the said animals, knowing or havingreason to believe the animals to be stolen property. After trial, thelearned Magistrate acquitted all the accused of the offence of theft butconvicted them of having retained the animals, which they knew to bestolen property.
There was no evidence in the case as to the person or persons by whomthe thefts were committed, though there was evidence that the theftsas well as certain other thefts relating to certain other animals had takenplace on the night of the 6th January. The evidence, however, againstthe accused persons, both in the earlier trial and the present one, wasthat they were found driving a flock of fifteen goats, all said to havebeen stolen on the night of the 6th, and they were detected driving theanimals in the early hours of the morning of the 7th January.
Mr. Hussein on behalf of the appellant who is the 3rd accused in thepresent case contends that the present trial is barred by reason of theprovisions of section 330 of the Criminal Procedure Code in that theappellant had previously been tried and acquitted of the offence ofhaving retained stolen property and that in the present case the offenceis the same offence which was the subject matter of the earlier proceedings.It is unnecessary to consider the effect of the charges in the two casesin respect of the offence of theft because in respect of these offencesthe accused were acquitted in the respective eases.
The question thus raised leads to a consideration as to whether theoffence in the present case is identically the same as the one which wasthe subject of the prosecution in the former.' As remarked earlier, theevidence against the accused persons was that they were found drivingthe flock of fifteen animals. The offence of retaining stolen propertywas therefore in respect of the accused having been found in control ofall the fifteen animals. Mr. Hussein contends that there was onlyone offence and that in the absence of any evidence to shew that theseveral animals were received by the accused persons on differentoccasions or that they came into possession at different times there wascnly one offence which they could be said to have committed and thatit cannot be said that there were as many offences as the number ofthefts that had taken place in respect of the several animals.
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JPiragaaam v. JMariamma
Mr. Hussein supported his argument by reference to three cases, thefirst of which is that of Ganeshi Sahu v. Em/peror1 where on almostidentical facts the Court held that there was no more than one offencedisclosed and that a subsequent conviction was illegal in view of theprovisions of section 403 of the Indian Criminal Procedure Code. Tomuch the same effect are the other two cases of Hayat v. Emperor 2 andJalal v. Emperor 3.
The contention of Mr. Hussein is sound and the conviction of theappellants after he had been acquitted of the identical offence in theearlier proceedings is contrary to the provisions of section 330 of theCriminal Procedure Code.
I therefore set aside the conviction and acquit the accused and actingin revision and for the same reasons set aside the convictions of the1st and 2nd accused as well. The prison authorities will becommunicated with immediately if the 1st and 2nd accused are yetin prison under the conviction and sentence entered in this case.
Appeal allowed.