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Present: Jayewardene A.J.
S1R1WAKDENE v. DIONIS.
16—P. C. Tdngalla, 15,228.
Receiving stolen 'property—Recent possession—Theft of cattle—EvidenceOrdinance, s. 114.
Possession of cattle eight months after theft is not too long aninterval to exclude the presumption of guilt arising under section114 of the Evidence Ordinance.
“ What is or is. not recent possession depends largely on t henature of the stolen property.”
The King v. Fernando 1 followed.
A PPEAL from a conviction by the Police Magistrate ofU TV Tangalla. The facts appear from the judgment.
J. 8. Jayewardene, for accused, appellant.
February 2, 1925. Jayewardene A.J.—
In this case it has been satisfactorily proved that the; twoshe-buffaloes, the accused was charged with dishonestly retaining,were stolen from the complainant’s possession in March, 1924, andthat they were found in the possession of the accused in Novemberof the same year, that is, eight months after the theft. There is no
1 (7905). 2 Bal. 46.
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direct proof that the accused had anything to do with the theft ofthe animals. His conviction is based on the presumption arisingfrom the possession of the animals “ soon after the theft ” and hisinability to satisfactorily account for his possession of them. It iscontended that possession of cattle eight months after the theft isnot “ soon after ” within the meaning of section 114 of the EvidenceOrdinance, and counsel for the appellant relies on the cases ofPabilis v. GoonatiUeke1 and Pereira v. Banhamy. – In the first caseit was held that where the evidence showed that two buffaloes hadbeen lost, one three years and the other eight months before thetheft, no inference could be drawn from their possession so longafter they had been lost by their owners, and Moncrieff A.C.J.in his judgment said :—
“ According to our own law, it is necessary that the possessionshould be soon after the theft, in order that the presumptionraised by the fact of possession may be justified. Periodsof three years and of eight months are, in my opinion,too long to justify the conviction, which is set aside.”
In the second case it was held, following the previous case, thatpossession of an animal two years after its loss was not such recentpossession as to give rise to an inference that the persons in whosepossession it was found knew or had reason to believe it to be stolen.
On the same lines is the ease of Perera v. Pemyanis,* whereMiddleton J. held that possession of cattle twelve months after analleged theft was not “ soon after ” within the meaning of section 14of the Evidence Ordinance, and that no presumption of theft could beinferred. In this case the learned Judge was not inclined to followthe opinion expressed by Wendt J., in two cases, 712—P. C. Colombo,77,319* and The King v. Fernando (supra) in which he had heldthat periods of twelve months and four months might beconsidered to be “soon after” in cases of theft of cattle.But in my opinion, Wendt J., in The King v. Fernando (supra) hascorrectly stated the circumstances to be taken into account inconsidering whether the interval of time between the theft and thediscovery of the animals in the possession of an accused is “ soonafter the theft ” or not. In that case the accused was found inpossession of stolen cattle four months after the theft, and thetrial Judge had acquitted him as he held that the possession was not“ recent ” or “ soon after the theft.” In the course of a judgmentsetting aside the acquittal the learned Judge said :—
“ He holds that the accused has failed to account for his possessionof the stolen animals. He has, however, acquitted him onthe charge of theft on the ground that such possession wasnot “ recent ” or “ soon after the theft in the words ofsection 114 of the Evidence Ordinance. What is or is not
(1900) 3 Br. 138.* (1907) 1 Leader L. Jf. 31.
(1916) 2 C. W. Jf. 201.* S. C. M. of February 10, 1903.
' Jayewar-llENE A-J.
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JAYB WAR-DENS A.J.
recent possession depends largely on the nature of thestolen property. If it be property that passes readily andusually from hand to hand, such as a book, a comparativelyshort interval may render it unreasonable to require thepossessor to account for his possession. But cattle arenot of that description ; they cannot be transferred bymere delivery, and the law requires that their sale andpurchase shall in every case be vouched by written in-struments, There is, therefore (as I had occasion to pointout in P. C. Colombo, 77,519, on February 10, 1903),nothing unreasonable in requiring the possessor ofstolen cattle to account for their possession after acomparatively long interval from the theft. The periodof four months in tins case is by no means an extravagantinterval, and as the accused has failed to satisfy the Courtas to the bonafides of liis acquisition of the animals, he isliable to be convicted of the theft.”
My own opinion is in entire accord with these views, and I holdthat a period of eight months is not too long an interval after thetheft to render section 114 (a) inapplicable to cases of cattle thefts.
I hold, therefore, that the accused was rightly called upon toaccount for his possession of the animals. He gave no evidence,but in a statement to the Court made, when asked to plead to thecharge, he stated that he had purchased the animals from a manwho had recently died. No satisfactory explanation was offeredfor his failure to obtain vouchers from his vendor, for these animalswere purchased, according to the evidence, several months beforethey were found in his possession. The witnesses he called failedto give him any assistance.
The conviction, in my opinion, is right, and the appeal must bedismissed.