123-NLR-NLR-V-18-THE-KING-v.-KIRINERIS.pdf
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Present: \<xk1 Itenton C.5. aiyl De Sampayo J.
THE $im v. KIRINEKIS.
353—D. 0. (Grim.) Kalutara, 8t989±
Penal Code, s. 919—Taking gratification to help to recover stolenpfoperty^Barden of proof.
In a charge ante section 219 of the Penal Code it is notincumbent on the prosecution to show that the accused *ha& not need” all means in his power to cause the offender to be apprehended *and convicted of the offence it is <m the accused himself to proveaffirmatively that he had.
PjpHE facts are set out in .the judgment.
Balasmgham, for the accused, appellant.—There is nothing toshow that the accused did not take all means in his power to causethe offender to be apprehended and convicted, of the offence. Theprosecution ought to have led at least some evidence to shift the.burden of proof on .to the accused.
The offence defined in section 212 does not consist in receivingmoney for helping a person to recover stolen property, but inreceiving money and not taking “ all means in his power to . causethe offender to be apprehended/' Ac.
The clause beginning with “ unless" does not introduce anexception, but forms part of the definition. Section 105 of theEvidence Ordinance does not therefore apply to this section.Section 106 of .the Evidence Ordinance does not apply, as this isnot a matter that is necessarily “ a fact that is especially within.the knowledge of any person, " &c. But even if it. were so, theprosecution should lead grime fade evidence. It is, for instance,not enough for the prosecution in the case contemplated in illustra-tion (a) of section 106 of the Evidence Ordinance to merely , provethat a person travelled by train. There ought to be proof that hehad no ticket. Counsel referred to Ratanlal, Law of Crimea, p, 291;Gour, vol. 7, p. 850; 186—D. C. (Crim.) Puttalam (August 10, 19%).
There is no proof that the bull was stolen:
Garvin, S.-G. (with him Obeyesekere, C.C.), for the Crown.—Theclause beginning with the word “ unless ’* introduces an exception,and it is for the accused to prove that the ease foils within the ex-ception. Counsel referred to Reg v. Noidappu,1 Rahhamy v. Banda.*
Cur. adv. twit.
January 20, 1916. Wood Renton C.J.—
The appellant has been convicted by the District Judge ofXalutara of having received an Olegal gratification from a man,
1 (2006) 2 A. C. B. 49.* (I006) 0 Tam. 1ST.
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Pod?? Singhs, in connection with file recovery o) & stolen bull, aji 1916-often i punishable under section 312 of file Pesal Code, and has Th* King v.been enfceoced to nine months' rigorous imprisonnent. The appbal KirtnmUwas « before me in. file first Instance, sitting alme, an Ihemerits I referred it Bench of two Judges for’the determinationof &.of- law, on whichth«?re had been emlistii^ local
decisions, nisrialy, wbefiier in a prosecution under section 312 ofthe I ’anal Ode it is tneambeat on tH; preaeCufciou“k» anew that theaeeutBd has apt used “ all means in bis power to cause fixe offenderto be apprehl/nded and convicted of tUa offence, ” or on the accusedbison if to prove affirmatively that Ire has done so. • In 186—D. C.
(Crira ) PuStohun,* Wendt J. held obiter that the onus probandi wason tin prosecution. In Rankamy u. Banda 8 Middleton J. declinedto fovlpw this authority, and ruler! that the burden of proof wason th i seemed, and Laseelles C.J. oama independently to the sameconclusion in Rex v. Naidappu *
After careful consideration, I am of opinion that the two laterdecisions just referred to are correct. No great assistance is to bederived from the English authorities on the point, inasmuch as inthe corresponding section in the English statute4 the Legislaturehas made a corrupt receipt of the gratification an element in thedefinition of file offence; although in that statute, as in section212 of the Penal Code, the clause which we have here to construeis introduced into the enactment by the word “ unless, ” and, asmy brother De Samp ay o has shown, the requirement that thereceipt should be corrupt does not involve the inclusion of disproofof file negative clause among the facta probanda by the prosecution.
Section 212 of the Penal Code is, however, identical in its termswith section 216 of the Indian Penal Code. I have been unable tofind any direst Indian authority upon the point. But both Gour *and Batanlal 9 seem to regard the fact that the accused has notused all the means in his power with a view to bringing the offenderto justice as one of the circumstances that have to be establishedby file prosecution. The structure of section 212 of the Penal Codeshows, in my opinion, that the Clause, “ unless he uses all means inhis power to cause the offender to he apprehended and convicted ofthe offence, " is in fits nature of an exception. It is introduced, asI have already indicated, by file word “ unless.” It is not embodiedin .the portion of the section in which the offence itself is defined,but is stated as a condition on which punishment for- that offencemay be avoided. Under section 105 of the Evidence Ordinance theburden of bringing his ease within file exception is, therefore, uponthe accused. Moreover, the ease is, I think, also governed bysection 106 of the Evidence Ordinance:“ When any toot is especially i
i 8. C. Min., Avgvtl 39, 2903.* 84 & M VicL, a. 80, e. ML
* (1900) 3 Tam. W.8 VeL /., 869.
8 (1903) 1 A. C. It. 4S• Lem of Crimes, M.
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^^ritiiin the knowledge of any person, the burden oi proving that
Woodi® upon him/' The accused in a prosecution under section 212
Besram ox of1 the Penal Code w the only parson who is in a position adequatelyTko£&npt>. to ‘supply the proof whjph the section requires. It was on thisKirinerie * ground that Sir* Alfred Lascelles based his judgment in Rex «,Naidappu.1 It appears to me that the intention of the .Legislature insection 212 aof the Penal Code was to make .the receipt, of a gratifi-cation for the purpose of securing the recovery of stolen propertyillegal and punishable, unless the person who received the gratifi-cation could show that he had acted in good faith. ©There is, inthy opinion, nothing harsh or unreasonable in an enactment of thischaracter. The transactions with which it deals are dangerous andsuspicious, and there can be no difficulty hi the establishment ofinnocence where it in fact exists.
It remains only for me to say a word as to the foots in the presentcase. Although there is no direct evidence that the bull jn questionwas stolen, both sides acted throughout on. the assumption thatsuch was the case. There is affirmative poof that the accused didnot supply the complainant with the names of the thieves* and his-stray that the bull had been re-stolen from the thieves themselves,coupled with his desire that the headman should not be. informedof the receipt of the gratification, throws a very unsatisfactory lighton his conduct. He certainly did not furnish the Court with, anyproof that he had used “ all the means in his power to cause theoffenders to* be apprehended and convicted of the offenee.. Theappeal must be dismissed.
De Sampayo J.—
, The indictment charged the accused, under section 212 of thePenal Code, with having taken a gratification on account of helpingone Patkirige Podi Singho to recover a stolen bull. That sectionenacts:“ Whoever takes or agrees or consents to take any gratifi-
cation under pretence or on account of helping* any person .torecover any movable property of which he shall have been deprivedby any offence punishable under this Code, shall, unless he uses allmefms in his power to-cause the offender to be apprehended andconvicted of the offence, be punished'with imprisonment oi eitherdescription for a term which may extend to two years, or with fine,or with both/'
The question reserved for consideration by a Bench ol two Judgesis whether under a charge under the above section -the prosecutionmust prove that the accused had not used all the means in hispower to cause the offender to be apprehended and convicted, orwhether the burden is on the accused of vproving that he had. • Theanswer to this question depends, in the first place, upon a furtherquestion, namely, whether the clause beginning with “ unless ’’ in
-i (1906) i A. C. R. 4$.
1816.
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*he above section of the tlode is pact of the definition of the offence,
or whether it constitutes an ^eeption.. For the .principle no diSubt Db B^ufayo
is that where any matter is part of .the direct description of 'the 1
offence, it should not only be alleged in the° charge, but must be.
■supported at least by prime facie evidendb, while«it is for the accusedto bring himself within an exception. It seems to me “that the-nriatw purpose .of the entire legislation on the subject 4s to suppressnil trafficking in crime, and therefore the above section in the firstinstance penalizes the mere foot of a gratification being taken to-recover any property the subject of the crime, but at the same timeexempts fftun its operation any person who shows his good faith bydoing his best to cany out his undertaking. Having regard both ■to the form of the enactment and its object, I think that thlqualifying clause under consideration states an exception which,if established, will negative the commission of the offence in nparticular cue. This being so, the provision of seotion 105 of theEvidence Ordinance, No. 14 of 1885, which only reproduces thegeneral rule of law on this point, applies, and throws the burden ofproof on theaccused. This constructionofsection212 of the
Penal Code issupported by the decisionsonanalogous provisions
in other local Ordinances. For instance, section 26 of the old Ordi-nance, No. 10 of 1844, made it an offence for any pemon to sell
arrack by retail “ without having obtained a license , or
unless he be acting for and by authority of ” a licensed retaildealer; and inTikiri Appuhamy v. PedrodeSilva *it was held
that while theabsence of a license was partof thedefinition of
the offence, and must be established by the prosecution by someevidence, however slight, the alternative provision contained intiie danse prefaced by the word “ unless ” oreated an exception,the proof of which lay on the accused. Section 212 Of our PenalCode, as well as the corresponding seotion 215 of .the Indian PenalCode, is taken, with some alterations, which toe not material to thepresent question, from the English Statute, 24 & 25 Viot., e. 96,section 101, which itself is adopted from 4 Geo. I., o. 11, seotion 4,and I may note that Arohbold’s Criminal Pleadings (ed. XIX,p. 897), while the form of the indictment there given contains' thenegative matter, states the necessary evidence to be (1) that thegoods were stolen, and (2) that the accused received the moneyupon' the pretence or account stated In the indictment, and nomention is made! of the necessity to prove the negative matter.
I also think that the burden of proof is on the accused for anotherreason. Under the English common law it is a matter of somecontroversy as to the extent of the rule that, if a negative avermentis made by one party which is peculiarly within the knowledge oftire other, the party who asserts the affirmative must prove it, andnot hq who asserts the negative. Rex v. Turner * and Elkin v.
1 (1879) 4 8. C. C. 136.* 6 M. <t W. 206
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1CH6. ,Janaon 1 may be cited as illustrative of the opposite viewp. ButPe Sampayo section 106 * of our Evidence Ordinance, No. 14 of 1805, puts the*Platter definitely as follows; “ When an/ fact is especially within77* King v. 'the knowledge of any person, the burden of proving the fact isJftrfoms upon hug.” The illustration (b) of that section, with regard to acharge of tavelling on a railway without a ticket, more (hapjustifies our holding that, in a case under section 212 of the PenalCode, the burden of proving that tihte accused had used all the means-in his power tb cause the offender to be apprehended and convictedof the offence is on the accused himself, and that it is notjuaoumbenton (he prosecutor in the first instance to prove the contrary.
# Accordingly I agree that Ranhamy v. Banda* and Rex v. Naidappu *lay down the correct ruling on this point.
Appeal dismissed..
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