030-NLR-NLR-V-23-SIVAPRAKASAM-v.-VEERAGATHY.pdf
Present: Schneider A. J.
SIVAPRAKASAM v. VEERAGATHY.
671—P. C. MaSa&k*, 7,893.
Stolen property found in room occupied by accused and mother—Exclusive,possession—Evidence that accused did not protest to police officer,when he made search, that property was introduced by another.
A. stolen gold chain was found by a constable bidden in a bagof paddy in the room of a hou$e occupied by a third party in whichthe accused was a lodger. Evidence was also adduced that accuseddid not protest at the time of the search that some one had intro-duced the stolen article into the house.
Held, that the conviction was bad, as the accused was not inthe exclusive possession of the stolen article, and as inadmissibleevidence (which amounted to a confession to a police officer) wasadmitted.
J. G. Pereira, K.G. (with him Bajakarier), for the appellant.lUangdkoon, C.C.. for the Crown.
August 1, 1921. SCHNBIDEB. A.J.—
The evidence accepted by the Magistrate is that a gold chainstolen from the house of the complainant was found by a policeconstable hidden in a bag of paddy in the room of a house occupiedby the second accused, in which the first accused was also a lodger.There is evidence that the first accused is not on the best of termswith the complainant about the latter’s sister, who is the wife ofthe first accused. The Magistrate thought that the first accused,the appellant, had exclusive possession of the stolen article, and healso thought this accused guilty, as he took no steps at the time ofthe discovery of the article to protest that it had been introduced;Considering that the house was in the occupation of both the accused,upon the state of the facts which were proved I do not understandhow the Magistrate can come to the conclusion that the article,or the bag of paddy in which it was found, was in the exclusive
1921.
SomUBZDEB
A.J.
Sivapra-kasamv.V.eeragathy
( 128 )
possession of either one of the accused. That it was more probablethat the one of them was moxh.* U7 dy to have concealed it than theother is not legal justification for the conclusion that, therefore,it was in his exclusive possession. The facts proved are insufficientto establish exclusive possession. The conviction of the firstaccused'bn that ground is bad. But there is another reason whythat conviction should not be sustained. The Magistrate hasacted upon inadmissible evidence. He has allowed evidence tobe led that the accused did not protest at the time of the searchthat some one had introduced the stolen article into the house.This is evidence which leads to inference that the accused byhis conduct confessed his guilt. That such evidence is inadmissiblehas been pointed out hi the cases of King v. Kalu Banda1 and Sinhav. Bengammy ?
i ^S'did, therefore, set aside the .conviction, and acquit theaccused.
My attention has been drawn to a letter on the record signed bysome person whose name I am unable to read, and who describeshimself as C. 0. This letter sets out what the accused had stated.That statement may, according to the facts to be proved, be tanta-mount to a confession of guilt. It appears to have been made toa police officer, and therefore inadmissible. It is very undesirablethat such inadmissible evidence should be put .before a Judgebefore he has decided a case, for it is bound to prejudice his mind.
Set aside.
'{1919) 16 N. U R. m.
* 3 Bah N. 0. 46,