121-NLR-NLR-V-16-THE-KING-v.-PERERA.pdf
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JM3.
Present: "Wood Benton J.
THE KING v. PEREBA.
66—D. G. (Criw.) Colombo, 3,610.
Instrument of house-breaking—Bunch of keys—Penal Code, s. 449.
A bunch of keys is capable of being an instrument of-house-breaking 'Within the meaning of section 449 of the Penal Code.
For a conviction under section 449 it is not incumbent on theprosecution to prove an intention on the part of the person inpossession of instruments of house-breaking without lawful excuseto break into a particular building.
A sword is a “ dangerous and offensive weapon.’* For a convictionunder section 449 the burden of establishing that a personarmed with a dangerous or offensive weapon was so armed withintent to commit an unlawful act is on the prosecution.
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facta appear from the judgment.
E. W, Jaytiwardene, for the appellant.—The mere possession of aninstrument of house-breaking is not an offence. There must be anintent to commit the offence, sufficiently manifested by some overtact. Silva v. Charles.1 A bunch of keys cannot be said to be aninstrument of house-breaking. The case of Queen v. Oldham* quotedin Funchirala Korala v. John 3 is distinguishable. There a clearintention to use them as a house-breaking implement had beenapparently proved. The police evidence should be received withcaution in a case where there are previous convictions against anaccused.
Garvint Acting S.G., for the Crown.—The case Queen v. Oldham 2covers a case of this kind, and that was followed by Wendt J. inPunchirala Korala v. John.9
June 13, 1913. Wood Renton A.C.J.—
The accused-appellant was charged, in the District Court ofColombo with having had in his possession without lawful excusean instrument of house-breaking, namely, a bunch of nineteen keys,and also with having been armed with a dangerous or offensiveweapon, namely, a sword. The learned District Judge has con-victed him on each count of the indictment, and has sentenced ■him to undergo concurrent sentences of one year's rigorous imprison-ment, and also, in view of previous convictions, four years* police
i (1896) 2 N. L. R. 164.2 (1862) 2 Den. C. C. 472.
» (1909) 12 N. L. R. 198.
1918.
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supervision after his discharge from jail. There can be no doubtbut that a bunch of keys is capable of being an instrument of house-breaking within the meaning of section 449 of the Penal Code.That point is covered by the authority of the case of Queen v.Oldkam,1 which was impliedly followed by Mr. Justice Wendt inPunchirala Korala v. John,2 Section 449 of the original Penal Codewas amended by section 2 of Ordinance No. 12 of 1906. The effectof the amendment is to make the mere possession of an instrumentof house-breaking without lawful excuse, the proof of which lies onthe person charged, .a criminal offence. It is no longer incumbent,under the new section, on the prosecution to prove an intention onthe part of the accused to break into a particular building. Thedecision of the Supreme Court in Silva v. Charles,3 which the appel-lant’s counsel, Mr. E. W. Jayewardene, tells me was followed in anunreported case in 1906, is, in my opinion, no longer law undersection 449, as re-enacted by section 2 of Ordinance No. 12 of 1906.
So much for the first count of the indictment. There can be noquestion but that a sword is a dangerous and offensive weapon, andthe accused-appellant has been properly convicted of having beenarmed with it, if. the circumstances of the case point to the conclu- -sion that he intended to use it for the purpose of committing anunlawful act. The burden of establishing that special intention is onthe prosecution. The evidence, which the District Judge has impli-citly accepted, shows that some time after midnight the appellant,in company with another man, was found in possession of the swordand the bunch of keys. His companion was armed with a jemmy.When the police approached they both moved aside. The accused-appellant has offered no explanation of how he came to be inpossession of the bunch of keys, or in the company of a man whowas carrying a jemmy. His defence is that he was not the personarrested at all, and that the charge is the result of a police conspi-racy. The District Judge has seen the witnesses for the prosecution,and has heard the appellant’s evidence. He has believed the twopolice officers, and I see no reason to differ from his conclusion onthe facts. It was suggested by the appellant’s counsel, although hewas careful not to put the point too high, that, in a case of thiskind, where there are previous convictions against an accusedperson, of which account may have to be taken in dealing with thequestion of police supervision, the evidence of police officers shouldbe received with the greatest caution. I entirely agree with thatargument so far as it goes, and I am sure that the learned DistrictJudge, although he has not touched upon it in his decision, kept itin view in arriving at his conclusion on the facts. If the argumentwere to be put higher, and the suggestion were to be made that
some kind of presumption exists against police evidence, unless it is
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1 <1852) 2 Den. C. C, 4722 {1202) 12 N. L. R. 198.
(1890) 2 N. L. R. 164.
Wood
Bbntob
A.C.J.
The King t.Perera
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Wood
A..C.J
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corroborated by that of independent witnesses. the results wouldbe highly unsatisfactory. Persons opposition and respectabilitywould be extremely loath to enter the police service of the countryif they were to be treated, when they came forward to give evidencein a court of justice, on the footing that such a presumption wouldbe expressly or tacitly recognized by the Courts. But, as I havesaid, Mr. Jayewardene did not put his argument on a higher levelthan one at which I should have been prepared to state it myself.
The appeal is dismissed.
Appeal dismissed.