DIAS A.J.—Sangaram v. Police.
1946Present: Dias A.J.
SANGARAM. Appellant, and POLICE, Respondent.
502—M. C. Colombo, 11,114.
Unlawful possession of housebreaking implement—Ambiguous character ofimplement—Burden of proof—Penal Code, s 449.
Where, in a prosecution for possession, ■without lawful excuse, of ahousebreaking implement, the implement possessed is one which isordinarily used for a lawful purpose but may also be used for house-breaking, it is incumbent on the prosecution, before the accused can becalled upon to prove a lawful excuse for possessing the implement, toestablish that the accused intended to use the implement for the purpose ofhousebreaking.
EPEAL against a conviction from the Magistrate’s Court, Colombo.
Accused-appellant in person.
T. K. Curtis, C.C., for the Crown, respondent.
Cur. adv. vult.
August 12, 1946. Dias A.J.—
The facts as found by the Magistrate are that at about 1 a.m. onNovember 27, 1945, Police Inspector A. J. Rajasuriya and other Policeofficers were patrolling the Hultsdorf area in a motor car. As thevehicle turned into Ferry street, the appellant was observed “ gettingbehind a tree ”. The Inspector stopped the car and a constable “ pulledthe appellant from behind the tree ”. He was searched, and the electrictorch PI was found in his hand, while in his waist were found the knifeP2 and an implement P3 which the Inspector describes as “ a chisel ”.The Inspector, who is the only witness called for the prosecution, statedthat “ as the accused could not give a satisfactory explanation ” he wasarrested and taken to the Police Station along with the articles foundon him.
On these facts, the appellant was charged under section 449 of thePenal Code with possessing, without lawful excuse, instruments of house-breaking, to wit—a chisel, a clasp knife and a torch. The appellant whowas represented by counsel gave no evidence and called no witnesses.The Magistrate convicted him. He admitted thirteen previous con-victions " for similar offences ” and was sentenced to undergo two years’rigorous imprisonment and two years’ Police supervision.
The appellant who appeared in person submitted that the torch andthe knife were not instruments of housebreaking. He further statedthat the “ chisel ” was not found on his person but was subsequentlyintroduced by the Police.
The latter submission I am unable to entertain. This suggestion wasnot made at the trial, nor was it put to the Inspector in cross-examination.It is also to be noted that the appellant gave no evidence on his ownbehalf. I have no hesitation in holding that these three articles werefound in the possession of the appellant.
DIAS A.J.—Sangaram v. Police.
It is settled law that in the case of instruments which are commonlyused for housebreaking, once the prosecution has established beyondreasonable doubt the faot that the accused was in possession of them,he must be convicted under section 449, unless he establishes some lawfulexcuse for their possession—26 N. L. R. 33- On the other hand, wherethe implement possessed is one of an ambiguous character, and is onewhich is ordinarily used for a lawful purpose, but may also be used forhousebreaking, the burden of proof is on the prosecution to prove notonly that the accused possessed it, but also that he intended to use it forthe purpose of housebreaking—34 N. L. R. 30. Under the category ofambiguous implements come keys, a torchlight, a knife, a carpenter’sgouge, a gimlet , a screwdriver, &c. See 34 N. L. R. 30, 12 N. L. R.198, 23 N. L. R. 166. In the case of instruments of this kind, before theaccused can be called upon to prove a lawful excuse for their possession,it is incumbent on the prosecution to establish that the accused intendedto use them for the purpose of housebreaking.Thus in 12 N. L. R. 198
where the accused was found to be in possession of a carpenter’s gouge,the facts that he was found at 9 v.m. at a place to which he was a stranger,that he carried the implement in a “ suspicious manner ” and that theaccused set up a false defence were held to show that he intended to use itfor housebreaking.
I cannot hold that the electric torch or the knife are necessarily instru-ments of housebreaking. I have called for and inspected the “ chiselIt has a round wooden handle and is 7£ inches long. It appears to bemore a screwdriver than a chisel, as the cutting edge is quite blunt.It is an unusual implement for a man to carry in his waist at 1 A.M., butI cannot hold that it is so obviously an instrument of housebreaking as toshift the burden of proof to the defence. Like the knife and the torchit is an ambiguous implement which may be used for breaking intohouses, besides being used for some lawful purpose.
Has the prosecution, then, established that the accused intended touse these things for housebreaking ? The circumstances relied on bythe prosecution to establish this fact are that the accused got behind atree when the Police car turned the comer, and that he had to be pulledout from behind the tree.
Another circumstance relied on is that the head of the accused was“ muffled up ”. Having regard to the presumption of innocence, Icannot say that these circumstances, taken as a whole, establish anythingmore than a case of suspicion against the appellant. He is a reconvictedCriminal and was probably well known to the Police. When the appellantsaw the Police car, it is not improbable that he did not want the Policeofficers to see him. The headlights of the car were on, and it is possiblethat he was dazzled by their lights and he got to a side. It is not unusualfor a man at 1 a.m. in the month of November to muffle his head againstthe cold north-easterly winds prevalent at this season of the year.When there are explanations which are consistent with the innocenceof the appellant, why select those which tend to incriminate him ? Inmy view this is a case in which the learned Magistrate should haveentertained a reasonable doubt of the guilt of the appellant.
DE SILVA J.—John v. Police.
Tn view of these findings it is unnecessary to consider the submissionmade by the Crown that the sentence imposed on the appellant isirregular.
The conviction of the appellant is set aside, and he is acquitted anddischarged.