020-NLR-NLR-V-43-SALGADO-v.-MUDALI-PULLE.pdf
94
MOSELEY SJ.J.—Salgada v. Mudali Pulle.
1941Present: Moseley S.P.J.
0
SALGADO v.' MUDALI PULLE.
514—M. C. Chilaw, 14,804.
Criminal misappropriation—Alternative charge of theft or dishonesty receivingstolen property—Doubtful offence—Criminal Procedure Code, ss. 181 and182.
Where an accused is charged with theft of property or in the alternativewith dishonestly receiving or retaining the said property,—
Held, that he could not be convicted of criminal misappropriationwithout a fresh charge.
Rasiah v. Rajadurai (3 C. L. W. 104) followed.
^^PPEAL from a conviction by the Magistrate of Chilaw.
Barr Kumarakulasingham, for accused, appellant.
’cur. adv. vult.
H. W. R. Weerasooriyd, C.C., for the Crown.
October 1, 1941. Moseley S.P.J.—
The appellant was charged with the theft of two buffaloes, in thealternative, with dishonestly receiving or retaining the said buffaloesknowing or having reason to believe the same to be stolen. The learned
' 2 C. W. Rep., page 317.2 5, S. C. Decisions, p. 38.
MOSELEY S.P.J.—Salgado v. Mudali Pulle.
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Magistrate held that the appellant had.been “found in recent possessiondishonestly, of the buffaloes " and convicted him of the offence of theft.He was sentenced to one month’s rigorous imprisonment.
The learned Magistrate was acting on the presumption which section114, illustration (a), of the Evidence Ordinance (Cap. 11) permits the Courtto make. The essence of that presumption, however, is that the goods,in possession of which an accused person is found, have been stolen. Thebuffaloes in this case were not proved to have been stolen. The onlyevidence in regard to their disappearance from the estate on which theywere tethered is that of the estate watcher who, going on his rounds,looked for the buffaloes “ but they were missing ”. He had tied them upwith strong rope, but it is not impossible that they strayed of their ownvolition from the estate which was unfenced on one side.
The story of the appellant is that he found the buffaloes on the road,and thought that one of them was an animal which he himself had lost atsome time previously. He took them to the house of the Headman,but that official was away. He wanted, he said, to hand the animalsover to a responsible person, presumably in order that inquiries mightbe made.
The learned Magistrate rejected his defence and convicted the appellantas stated above. It is clear, I think, that the conviction for theft cannotbe sustained. The charge of retention stands on the same footing.
Crown Counsel, however, contends that, since the defence has beendisbelieved, appellant could have been convicted of criminal misappropria-tion. I think that the contention is sound. That would appear to havebeen the proper charge upon the facts as they must have been knownto the prosecution. The appellant however was not so charged. Still,Crown Counsel urges, upon the charge as laid, he could have been convictedof criminal misappropriation, and he relies upon the provisions of sections181 and 182 of the Criminal Procedure Code (Cap. 16), which are asfollows : —
“ If a single act or series of acts is of such a nature that it is doubtfulwhich of several offences the facts which can be proved will constitute,the accused may be charged with all or any one or more of such offencesand any number of such charges may be tried at one trial and in atrial before the Supreme Court or a District Court may be includedin one and the same indictment,‘ or he may be charged with havingcommitted one of the said offences without specifying which one ”.
“ If in the case mentioned in the last preceding section the accusedis charged with one offence and it appears in evidence that he committeda different offence for which he might have been charged under theprovisions of that section, he may be convicted of the offence whichhe is shown to have committed although he was not charged with it.”Counsel for the appellant, however, contends that these sections do notapply, since, on the facts in possession of the prosecution there shouldhaye been no doubt as to the particular offence, if any, which had beencommitted. He relied upon Rasiah v. Rajadurai1. In that case the
> 3 C.L.W. 104.
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MOSELEY S.P.J.—Salgado v. Mudali Pulle.
accused had been charged with cheating and was convicted of criminalbreach of trusts MaaCrtensz J. said :“ Clearly the offence, if any,
committed by the accused is one of criminal breach of trust, and it wasnot open to the learned Police Magistrate to convict him of that offencewithout charging him afresh So, here I do not think that the appellantcould properly have been convicted of criminal misappropriation withouta fresh charge alleging that offence.
In view of the confusion that appears to have arisen in respect of theidentity of the animals found in the possession of the appellant with thoseproduced ip Court I do not think it would be fair to the appellant toorder a new trial on the appropriate charge.
I would allow the appeal; the conviction and sentence are set aside.
Set aside.