080-NLR-NLR-V-48-THE-KING-v.-JAYASENA.pdf
HOWARD C.J.—The King v. Jayasena.
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1947Present: Howard CJ. and Jayetileke J.
THE KING v. JAYASENA43-44—D. C. (Criminal) Colombo, 977.
Offences of theft and dishonest receiving—Several accused charged with theft—Possibility of convicting some of theft and some of dishonest receiving—Joinder of accused persons—Joinder of charges—Burden of proof ina prosecution for dishonest receipt of stolen property—Penal Code,ss. 369, 394—Criminal Procedure Code, ss. 181, 182, 184.
Seven accused were charged with committing theft. Three of themwere found guilty of theft, and the other four were convicted of dishonestlyreceiving or retaining the stolen property. The evidence showed thatthere was, so far as some of the accused were concerned, a measure ofdoubt as to whether the Court would draw the inference that the factsconstituted theft or dishonest receiving of property.
Held, that even if the theft and dishonest receiving were not committedin the same transaction the joinder of all the accused in one chargewas in order, and that it was open to the Court, under sections 181 and182 of the Criminal Procedure Code, to find some of the accused guiltyof theft and some of dishonest receiving.
Held, further, that, as the offence of dishonest receiving was in factcommitted in the same transaction as the offence of theft, the joinderof such offences was permissible under section 184 of the CriminalProcedure Code.
Where, in a prosecution for dishonest receipt of stolen property, itis established that the accused was in possession of goods recently stolenthe burden is on the accused to give an explanation which, in the opinionof the Court, might reasonably be true and which is consistent withinnocence.
PPEAIjS against two convictions from the District Court, Colombo.
F. N. Gratiaen, K.C. (with him G. E. Chitty and A. E. Keuneman),for the 1st accused, appellant.
A. Hayley, K.C. (with him Stanley Alles), for the 5th accused,appellant.
J.A. P. Cherubim, C.C., for the Attorney-General.
Cur. adv. vult.
June 11, 1947. Howard C.J.—
In this case seven accused were charged with committing theft of18 bags of dried chillies to the value of Rs. 900, property in the possessionof R. J. Jayaratna, Storekeeper, Subsidiary Foodstuffs Depot, Maradana,contrary to the provisions of section 369 of the Penal Code. The 2nd,6th and. 7th accused were found guilty of this offence and sentencedto a term of one year’s rigorous imprisonment. The 1st, 3rd, 4th and 5thaccused were convicted under section 394 of the Penal Code of dishonestlyreceiving or retaining stolen property knowing or having reason to believethe same to be stolen property and were also. sentenced to a term ofone year’s rigorous imprisonment. The 1st and 5th accused have appealedagainst their convictions.
The first point taken on behalf of the appellants is that there was amisjoinder of charges and that it was not open to the District Judge tofind any of the accused guilty of an offence under section 394 of the
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HOWARD C.J.—The King v. Jayasena.
Criminal Procedure Code. Section 184 of the Criminal Procedure Codedeals with the joinder of charges against more persons than one and isworded as follows :—
“ When more persons than one are accused of jointly committingthe same offence or of different offences committed in the same trans-action or when one person is accused of committing any offenceand another of abetment of or attempt to commit such offence, theymay be charged and tried together or separately as the court thinksfit; and the provisions contained in the former part of this chaptershall apply to all such charges.”
The accused in this case were charged with committing the same offenceand hence prima facie there would appear to be no misjoinder. Againthere would be no misjoinder if some of the accused had been chargedunder section 369 and some under section 394, provided that these differentoffences were committed “ in the same transaction ”. Section 184 of theCriminal Procedure Code must be read with sections 181 and 182 whichare worded as fellows: —
181. If a single act of series of acts is of such a nature that it isdoubtful which of several offences the facts which can be provedwill constitute, the accursd may be charged with all or any one ormore of such offences and any number of such charges may be triedat one trial and in a trial before the Supreme Court or a District Courtmay be included in one and the same indictment; or he may be chargedwith having committed one of the said offences without specifyingwhich one.
Illustration.
A is accused of an act which may amount to theft or receivingstolen property or criminal breach of trust or cheating. He may becharged with theft, receiving stolen property, criminal breach of trust,and cheating, or he may be charged with “having committed one of thefollowing offences, to wit, theft, receiving stolen property, criminalbreach of trust, and cheating ”.
182. 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.
Illustration.
A Is charged with theft. It apears that he committed the offenceof criminal breach of trust or that of receiving stolen goods. He maybe convicted of criminal breach of trust or of receiving stolen goods(as the case may be) though he was not charged with such offence.
The first point that arises for decision is whether in the event of itsbeing doubtful whether some of the accused are guilty of theft or dis-honestly receiving stolen property, it is open to the Crown to join all ofthem in one charge even if the “ theft ” and dishonest receiving were not
HOWARD CJ.—The King v. Jayasena.
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•committed in the same transaction. Counsel have not been able to citeany authority covering this point. Can it be said in this case that the“ act or series of acts is of such a nature that it is doubtful which of severaloffences the facts which can be proved will constitute ” ? I am of opinionthat it can be so said in the case of the 1st, 3rd, 4th and 5th accused.It was proved at the trial by the witness Wappu, a watcher employedby the Marketing Department, that the 2nd accused who was employedns a watcher at the Panadure Motor Transit Company Garage came tohim about midnight and told him that they were going to do a certainthing and wanted him to be quiet. Then he saw the 6th and 7th accused,who were watchers at the Subsidiary Foodstuffs Depot, remove in conjunc-tion with the 2nd accused 24 bags of chillies in all from the depot to thePanadure Motor Transit Company Garage and from the garage to thelorry. This witness although saying that there were others helping the2nd, 6th and 7th accused stated that he did not see the 1st, 3rd, 4th or5th accused. The evidence of Sub-Inspector Basnayake was to the effectthat about 2.30 a.m. the same morning he was in ambush at DarleyHoad—McCallum Road junction with other Police when lorry No. X 1115came from the direction of the Subsidiary Foodstuffs Depot and turnedinto Darley Road and proceeded in the direction of Union Place. TheSub-Inspector followed in a patrol car and overtook the lorry whichhad no lights other than a hurricane lamp burning by the side of thedriver. The lorry was overtaken and stopped. The 5th accused wasthe driver, whilst the 1st accused was in the front seat. The 3rd and4th accused were behind. The lorry was loaded with 18 bags of chillies.The 5th accused handed the Sub-Inspector Rs. 100 in Rs. 10 notes.On statements made by the 1st and 5th accused the Sub-Inspector wentto the Subsidiary Foodstuffs Depot in McCallum Road. There he foundan open shed with bags of chillies in them. The 1st accused is a traderhaving a boutique in Dean’s Road. The 3rd accused is a mechanic workingin McCallum Road, the 4th accused is a servant employed by the 1staccused, whilst the 5th accused was a lorry driver who worked for thePanadure Motor Transit Company and at the time of this offence wasemployed by Messrs. Brooke Bond, Ltd. The interval of time betweenthe actual removal of the bags from the shed and their removal fromthe garage in the lorry was very short. In these circumstances all theaccused, if guilty knowledge was established, were in possession of recentlystolen property and could therefore have been found guilty of theft.In fact the District Judge in his judgment says “it would seem that allthe seven accused have planned jointly with one common purpose tocommit this theft ”. In the circumstances I think there was so far assome of the accused were concerned a measure of doubt as to whetherthe Court would draw the inference that the facts constituted theft ordishonest receiving of property. In this connection I would refer tothe decision of Canekeratne J. in Wijeyeratne v. Menon The joinder ofall the accused in one charge was therefore in order.
In this connection the use of the word “ accused ” in section 181 includesboth the singular and the plural, vide section 2 (x) of the InterpretationOrdinance, Cap. 2. If such joinder is legal, I am of opinion it follows
1 (19*7) 48 N. L. n. 164.
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HOWARD C.J.—The King v. Jayasena.
that it is open to the Court to find some of the accused guilty of theft,and some of dishonest receiving. Section 182 must be read with section181. Thus if after evidence has been given it is found that the accusedcommitted a different offence with which he might have been chargedunder section 181, then section 182 can be availed of.
I am also of opinion that the offence, namely, dishonest receiving, ofwhich the 1st, 3rd, 4th and 5th accused were found guilty, wascommitted ** in the same transaction ” as the offence, namely, theft, ofwhich the 2nd, 6th and 7th accused were found guilty. Hencejoinder of such offences was permissible under section 184 of the CriminalProcedure Code. Various decisions have been cited by Counsel for theappellants, but none of them seem to be exactly in point so far as thefacts of this case are concerned. In Inspector Sourjah v. Hinruhamy Soertsz J. held that the joinder of charges of house-breaking and theftagainst one accused with a charge of returning stolen property againstancfther is a fatal irregularity. In this case, however, all the accusedwere charged with theft. Moreover, the judgment of Soertsz J. doesnot deal with the position that arises when the case comes within theambit of section 181 of the Criminal Procedure Code. In P. AlbertuFernando v. S. E. Fernando2 two persons were charged together, the onewith stealing a bull the other with dishonestly receiving the animalfrom the first. It was_Jheld that the offences were distinct and theaccused could not be charged together at one trial. The interval of timeprecluded a presumption that the two offences formed one transaction.Moreover, in the present case the accused were charged with the sameoffence. In Police Sergeant v. Semijah3 Wood Renton C.J. held thatthere was a misjoinder where in the same charge one accusedwas charged with the theft of a bull and the other with unlawful posses-sion of beef there being no evidence to connect the beef with the bullalleged to have been stolen. In Joriklass v. Somadasa ‘ it was held byWijeyewardene J. that community of purpose and continuity of actionare essential elements necessary to link together different acts so as toform one and the same transaction within the meaning of section 184of the Criminal Procedure Code. In this case I am of opinion that therewas continuity of action. The community of purpose was the theftand disposal of the chillies. Our attention was also invited to variousIndian decisions. It has been a matter of some difficulty to reconcilethese decisions. In Bislinu v. Empress5 it was held that when goodsare stolen and subsequently received, it will depend on the circumstanceswhether the theft and the receipt are parts of one and the same transaction.So that the thief and the receiver can be tried together. Referencewas made to the case of Bishnu v. Empress in the judgment of Stephen J.in Abdul Majid v. Emperor * in the following passage on pages 1263-1264 : —“ The question then arises : Were they accused of different offencescommitted in the same transaction ? It is to be noticed that the fourof them, whose charges alone are before us, were charged with retainingonly and not as they might have been, with retaining and receiving.
> (1937) 8 C. L. W. 20.* (1942) 43 N. L. R. 284.
(1913) 1 Ceylon Criminal Appeal Reportte 30.5 (1897) 1 C. W. N. 35.
(1914) 3 Balasingham's Notes of Cases 361.* (1906) 33 Calcutta 1256.
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It may be, however, that in this case this makes no difference, becausean illegal receiving may be presumed from an illegal retention. Taking!this to be so, and that we are to consider retaining to be the samething as receiving, it appears from the case of In re A. David (1880)5 C. L. R. 574 that where one prisoner stole and another received,they committed different offences in the same transaction, but thisis subject to the qualification mentioned in Bishnu v. Empress (1897)
I. C. W. N. 35 that the offence of receiving must have been committed;simultaneously with, which must mean very soon after, that of stealing.In the present case there is no evidence as to the circumstances underwhich the receiving took place ; it may have taken place several daysafter the theft; the property may even have passed through severalhands before it came into the possession of the accused. It is thereforeimpossible to hold that the offence of receiving by the petitioner andthe offence of stealing by the unknown thief were offences committedin the same transaction within the meaning of section 239. Still less, asit seems to me, can it be held that the offences of the different accusedwere so connected. Consequently it follows that the joint trial ofthe accused was not according to law ”,
The two Indian cases I have cited were also followed in the case ofOhi Bhusan Adhikary and another v. Emperor
In the present case in my opinion the offence of receiving must havebeen committed very soon after that of stealing and hence the twooffences form parts of one and the same transaction so that the theifand the receiver can be tried together.
Apart from the question of misjoinder Counsel for both the appellantshave contended that the prosecution have not discharged the burdenof proof. In R. v. Abramovitch* it was held that
“ The onus of proving, guilty knowledge always remains upon theprosecution. The judge, in directing the jury, should, where the cir-cumstances of the case require it, tell them that, upon the prosecutionestablishing that the prisoner was in possession of goods recently stolen,they may, in the absence of any explanation by the prisoner of the way"in. which the goods came into his possession, which might reasonablybe true, find him guilty but that, if an explanation be given whichthe jury think might reasonably be true, and which is consistentwith innocence, although they are not convinced of its truth, the pri-soner is entitled to be acquitted, inasmuch as the prosecution wouldhave failed to discharge the duty cast upon it of satisfying the jurybeyond reasonable doubt of the guilt of the prisoner. ”
This decision represents the law as always followed in Ceylon, vide Fer-nando v. Heller ’. The appellants were entitled to be acquitted if the DistrictJudge combining the functions of Judge; and Jury thought that theirexplanations might reasonably, be true inasmuch'as in such circumstancesthe Crown would have failed to; discharge the duty cast upon if: to satisfythe Court beyond reasonable doubt' of the guilt Thf the accused. TheDistrict Judge has held that the explanations of ‘the appellants were riot
I. L. R. 46 Calcutta 741.;■ .O'‘ :v* (1916) Sit j K. B.. 396.
H194S) 46 X. L. R. 406:
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Sangarapillai v. The Attorney-General.
reasonably true. It is impossible to say that he was not justified incoming to this conclusion. In regard to the 5th accused, on his ownadmission, when giving evidence, he consented to drive the lorry belongingto the Panadure Motor Transit Company at a very late hour at the requestof the watcher. He had previously been an employee of the Companyand hence must have known that what was going on was not above board.Moreover on arrest he handed Rs. 100 to the Sub-Inspector. I considerthe District Judge was right in holding that his explanation was notreasonably true. A fortiori the explanation given by the 1st accusedwas not one that could be reasonably accepted by the District Judge.
It has also been contended by Counsel for both the appellants thatexclusive possession necessary for their conviction was not establishedin the case of the 1st and 5th accused. Guilty knowledgeof these accused was established beyond reasonable doubts. In myopinion a conspiracy to remove the stolen articles on the lorry was proved.In these circumstances the exclusive possession of the 1st accused whowas the buyer of the goods and the 5th accused who was the driver ofthe lorry transporting them was established. For the reasons I havegiven the appeals are dismissed.
Jayetilleke J.—I agree.
Appeals dismissed.