017-SLLR-SLLR-1986-V-1-SOMARATNE-v.-THE-ATTONEY-GENERAL.pdf
Somaratne v. The Attorney-General
217
gA
SOMARATNE
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
MOONEMALLE. J. AND JAYALATH, J.
C.A. (S.C.) 'i 3/79-D.C. GALLE 16470,
JULY 3, 1985.
. Criminal Law-Housebreaking and theft, s. 443 and s. 369 of the PenalCode-Retention of stolen property, s. 394 of the Penal Code-Commonintention-Evidence Ordinance, section 114(a).
Where the only evidence against the appellant who had been convicted along withanother of house-breaking and theft by breaking into a textile store and stealing textileswas that he was the driver of the lorry in which the stolen textiles were transported andhis explanation was that on the instructions of one Mawjoor Mudalali in whose garagethe lorry (owned by one Miskin) was parked he had driven it to Galle from Colombo withtwo unknown persons and on their directions parked it near a store and while he slept athis seat, textiles had been loaded into it and thereafter he had driven back to SaundersPlace, Pettah at which point the detection was made and he was taken into custody.
Held-
There was no evidence that the appellant entered the store building at Galle andtherefore the conviction of house-breaking under s. 443 of the Penal Code cannot besustained.
As the appellant did not enter the building he could not be convicted of theft from abuilding used for the custody of property under s. 369 of the Penal Code.
The conviction of the appellant on the basis of his having entertained a commonintention along with thr^other accused cannot stand as the Judge had failed to discussthis rul# and apply it to the facts of the case. The prosecution must prove the essentialsingredients of common intention namely a sharing of a common intention andparticipation in the commission of the offences.
Under s. 114(a) of the Evidence Ordinance the Court may presume that a man whois in possession of stolen goods soon after the theft is either the thief or has receivedthe goods knowing them to be stolen unless he can account for his possession. As thepresumption arising under s. 114 (a) of the Evidence Ordinance is a presumption of factin the nature of a mere maxim, it is the duty of the trial Judge to consider carefullywhether the maxim applied to the facts of the case before him.
Where the prosecution relies on circumstantial evidence for common intention then theprinciple is that the inference of common intention should not be reached unless it is anecessary inference, an only inference, an inference from which there is no escape.Failure to apply these tests will make the conviction on the inference that the appellanthad acted in futherance of a common intention unsustainable.
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It is the duty of the trial Judge to consider whether the explanation given by theappellant was reasonably true and if so. even though the trial Judge is not convinced ofits truth, the appellant is entitled to be acquitted.
Case referred to:
Cassim v. Udayar Manaar (1943) 44 NLR 5 19.
APPEAL from judgment of the District Court of Galle.
Dr. Colvin ft. de Silva, with Mrs. Manori Mulhthetuwegama, Bimal Rajapakse. and MissSaumya de Silva for 2nd accused-appellant.
ft. Arasakuiaratne. S. S. C. for Attorney-General.
Cur. adv. vult.
August 8. 1 985.
MOONEMALLE, J.
At the trial there were four accused. The indictment contained thefollowing three charges
That the four accused did on or about 1 1 th March 1971commit house-breaking by entering into the building of theHirimbura Textile Co-operative Society with the intent tocommit theft, and thereby committed an offence punishableunder section 443 of the Penal Code.
That at the same time and place and in the ^ourse of the sametransaction these accused did commit theft of cloth valued atRs. 200,000 from the possession of W. Weerasunya of theHirimbura Textile Co-operative Society and thereby committedan offence punishable under section 369 of the Penal Code
That on the same day and in the course of the same transactionat Pettah, Colombo, the first and second accused diddishonestly retain stolen property to the value of Rs.129.163.30 cts.. to wit cloth stolen from the possession ofthe said W. Weerasunya. knowing or having reason to believethe same to be stolen property, and thereby committed anoffence punishable under section 394 of the Penal Code.
£ Somaratne v. The Attorney-General {Moonemalle. J.)219
After trial, the 1st and 2nd accused were found guilty on counts 1and 2, and the trial Judge did not come to a finding on count 3 as hehad convicted the two accused on counts 1 and 2, The 3rd and 4thaccused were acquitted on counts 1 and 2. The 1st and 2ndaccused were each sentenced to 5 years' R.l. on count 1, and to 18months' R.l". and a fine of Rs. 100 in default 2 weeks' R.l, on count 2,the Sentences to run concurrently. The 1 st accused did not appealfrom these convictions and sentences. It is only the 2nd accused who"has appealed. There are two incidents which took place in this case.The first was at the Hirimbura Textile Co-operative Society, Galle andthe second at Saunder's Place, Pettah. There were three watchersattached to he Hirimbura Textile Co-operative Society, Galle. Thewatcher on duty on the night of 11.3.1971 was Dias. He had takenup duties that nigt at 10 p.m. When he was on his rounds at the rearof the building, about 2 a.m. four persons came up to him. One wasarmed with a revolver and another with a knife. The knife and revolverwere placed against his chest and he was threatened not to shout.Then one of them put a piece of cloth into Dias's mouth and coveredhis face with a cloth and tied it up. Thereafter. Dias's legs were tiedtogether and he was carried and placed on a bench and tied up there.About five minutes later he heard the doors of the stores being forcedopen. Dias stated that the 1st, 3rd and 4th accused were amongthese four persons. The 1st accused had pressed the revolver againsthis chest. One of the four had sat on top of his legs when he was tiedto the bench. He had not shouted out till they had left the place.
Josinahamy who was the mother of one of the watchers stated thatabout 3.30 a.m. that day a Muslim person had come to her house andhad tcjjd her that h^r son was "finished", meaning that he was dead.She then went to the spot. It was very dark at the time and sheproceeded towards the watcher's quarters. There she found a persongroaning. She removed the cloth with which Dias was covered andspoke to him and then she realized that he was not her son. She hadthen informed Panditha, the Chairman of the Society who had come tothe place and found the watcher Dias tied to a bench. Then he hadinformed the Galle police. It was after the police arrived at the scenethat Dias was released. This was the incident that occurred at Galle.
On 1 1.3.1971, Inspector Fonseka who was then P. S. 6564 andwas attached to the Pettah police station, had been returning to thestation after checking on an information, when about 8.35 a.m. when
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he reached Saunder's place, he saw a lorry hailed. Then when he wascoming in the direction of the lorry, he noticed some children whowere near the lorry taking to their heels. He got suspicious and wentup to the lorry and found the 2nd accused in the driver's seat and the1st accused seated next to the 2nd accused. The lorry containedtextiles. He had questioned both accused and as they did not give asatisfactory explanation, he had the lorry driven to the Pettah policestation. The lorry contained verties, small bed sheets and sarees.a motor and two table lamps. A revolver was found somewherebehind the driver's seat. After the accused were questioned, the Gallepolice were notified. Some officers from the Galle police station alongwith the storekeeper, Wimalasiri, the Accountant Weerasuriya andDias all of the Hirimbura Textile Co-operative Society came to thePettah police station. The productions except the revolver which werefound inside the lorry were identified as property of the HirimburaTextile Co-operative Society. The 1st accused did not give evidence.The 2nd accused in his evidence stated that he was the driver of thelorry and his employer was one Mawjoor Mudalali. The owner of thelorry was one Miskin. The lorry was kept at Mawjoor's garage at Princeof Wales Avenue, Colombo. On 10.3.71 about 4 or 5 p.m.. Mawjoorhad told him to take the lorry to Galle. At that time there were twopersons unknown to him who were in the lorry and he was asked to goto Galle with them. He set out tor Galle in the lorry with these twoabout 6-6.30 p.m. they arrived at Galle after midnight and he did notknow very much about the roads there. He was directed by the othertwo, about 1 or 2 a.m. he had halted the lorry near a store. The twopersons in the lorry had got down there. Thenfcloth goods wereloaded into the lorry'while the 2nd accused slept in his seat. AtVer meloading was completed, the 1st accused had got into the lorry and the2nd accused drove the lorry back to Colombo. The lorry was halted atSaunder's Place, Pettah when they were taken into police custody.The learned District Judge rejected the evidence of Dias regarding hisidentity of the4 st, 3rd and 4th accused that night. He also did not acton the results of the identification parade due to certain infirmities inthe holding of the parade. There is no doubt that the goods found inthe lorry were identified as those stolen from the Hirimbura TextileCo-operative Society, and that at the time the 1 st and 2nd accusedwere arrested those stolen goods were in the lorry in which the twoaccused were. Dr. Colvin R. de Silva who appeared for the 2nd
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Somaratne v. The Attorney-General (Moonemalle, J.)
221
accused-appellant conceded that the goods found in the lorry wereestablished as being goods stolen from Hirimbura Textile Co-operativeSociety. However, Dr. de Silva submitted that there was no evidencethat the 2nd accused had entered the building of the Co-operativeSociety from where the goods were stolen. He submitted that the 2ndaccused had been asleep on his seat in the lorry at the time of theloading. He submitted that the 2nd accused could not therefore befound guilty of the offences of housebreaking and theft.
Dr., de Silva further drew our attention to section 369 of the PenalCode under which section the 2nd accused was found guilty on count2-. According to section 369 the theft had to be committed in anybuilding used for the custody of property. He submitted that as therewas no evidence that the 2nd accused entered the Society buildingthere was no material on which to convict the 2nd accused for tneoffence of theft under section 369. He further submitted that thelearned trial Judge had convicted the 2nd accused on both counts 1and 2 for offences of house-breaking and theft on the basis that heentertained a common intention along with the 1 st accused to committhese offences. He submitted that the learned trial Judge had failed todiscuss the rule of common intention and apply that rule to the-facts ofthe case. Therefore Dr. de Silva submitted that the convictions andsentences against the 2nd accused on counts 1 and 2 could not besustained.
Senior State Counsel conceded that he could not support theconviction of the 2^id accused on the charge of housebreaking, but.he submitted that the conviction of the 2nd accused on the charge oftheft should stand. He relied on section 114 (a) of the EvidenceOrdinance under which the Court may presume that a man who is inpossession of stolen goods soon after the theft is either the thief orhas received the goods knowing them to be stolen unless he canaccount for his possession. Where offences such as housebreakingand theft are alleged to be committed in furtherance of a commonintention, it is necessary for the prosecution to prove two essentialingredients, namely, a sharing of a common intention by the accusedand participation of the accused in the commission of those offences.It was necessary for the trial Judge to apply the rule of commonintention to the facts of the case. Where the evidence before the trialJudge was circumstantial, then it was his duty to pay heied to theprinciple that the inference of common intention should not be
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reached unless it is a necessary inference, an only inference, aninference from which there is no escape. The learned trial Judge hasbeen silent on all these important factors relating to the rule ofcommon intention. He should have considered them along with theevidence in the case which he should have carefully analysed beforecoming to any finding on the question whether the 2nd accused actedin furtherance of a common intention with the other accused tocommit the offences of housebreaking and theft. I agree with Dr.Silva that the conviction of the 2nd accused on the charges ofhousebreaking and theft on the basis that these offences werecommitted in furtherance of a common intention cannot stand.
It has been established that the goods found in the lorry are stolengoods, and that the 1 st and 2nd accused were in the lorry in which thestolen goods were at the time of detection by P. S. Fonseka. and it hasbeen established that these goods were detected in the lorry soonafter the theft. The burden is on the prosecution to prove that the 2ndaccused was in possession of these stolen goods. If it is proved thatthe 2nd accused was in possession of these stolen goods, then in thecircumstances of this case, he will be presumed to be the thief, or tohave received the goods knowing them to be stolen unless he canaccount for his possession.
From the mere fact that the 2nd accused was in the lorry at the timeof the detection, it does not necessarily follow that he was inpossession of the stolen goods. He was not alone in the lorry. Thequestion arises in whose possession were the stolen goods. The 1staccused has given no explanation in court regarding the possession ofthese goods. In fact he gave no evidence at all. On the other hafld, the2nd accused gave sworn evidence and has given an explanation as tohow these goods came to be in his lorry.
As the presumption arising under section 1 14(a) of the EvidenceOrdinance is a presumption of fact in the nature of a mere maxim, it isthe duty of the trial Judge to consider carefully whether the maximapplied to the facts of the case before it. Cassim v. Udayar Manaard).
It was the duty of the trial Judge to have considered whether theexplanation given by the 2nd accused was reasonably true. Thelearned trial Judge when considering the case of the 1st and 2ndaccused referred to the evidence of P. S. Fonseka who stated that he
c*Somaratne v. The Attorney-General (Moonemalle. J.)223
questioned these two accused and that they did not give a satisfactoryexplanation. This evidence is not relevant. The question whether theaccused gave a satisfactory explanation or not is a matter for the courtto decide. He referred to the evidence of Miskin the owner of the lorrywhere he had stated that he did not give permission for the lorry to betaken that day. But the fact is that Miskin is not the 2nd accused'semployer, and the 2nd accused does not get directions from Miskin:The 2nd accused's employer is Mawjoor, who is the son-in-law ofMiskin. Miskin himself testified to the fact that it was his son-in-lawwho paid the 2nd accused's salary. According to the 2nd accused, hedrove this lorry to Galle, that day on instructions of Mawjoor. Thus, noadverse inference could be drawn against the 2nd accused becauseMiskin had not given permission for the lorry to be taken from thegarage.
Learned Senior State Counsel submitted that the 2nd accused didnot call Mawjoor to support his story. It might very well be that the2nd accused thought that it was not likely that Mawjoor wouldsupport his story fearing that he himself may be implicated, as thestolen property was found in the lorry which he sent to Galle with hisdriver. In my view, allowance must be given to the 2nd accused forany reluctance on his part to call Mawjoor. The trial Judge should havecarefully analysed the evidence before coming to a finding as to whowas in actual possession of the stolen goods. According to the 2ndaccused he was the mere driver,of this lorry and he was carrying outthe instructions of his master to drive the lorry to Galle with the twopersons given to hirr^ The 2nd accused had slept on his seat in thelorry whjje the loading took place. This is normal conduct of a lorrydriver. A lorry driver never assists in loading a lorry. The loading isdone by labourers. One of the reasons, the learned trial Judge did notact on the 2nd accused's evidence was because the 2nd accused hadstated that when he had stopped the lorry near the Stores andremained in his seat during the loading, that he neither heard anythingnor saw anything, while the watcher Dias stated that he had shoutedout when he lay tied on to the bench. The learned trial Judge did notaddress his mind to the fact'that Dias at no stage of the incident spokeof hearing a lorry coming into the premises. In fact, he did not speak tohearing the sound of any lorry at any stage. It may very well be thatwhen the lorry did arrive and leave, Dias was either fast asleep or had
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been left tied on to the bench in another part ot the premises iromwhere his shouts could not have been heard to the lorry nor could hehave been seen from the driving seat of the lorry. The place where hehad been tied up may have been dark when the lorry arrivedAccording to Josinahamy when she went to these premises about3.30 a.m. it was very dark and she found Dias tied to a bench m thewatcher's quarters. The learned trial Judge when considering theevidence of the 2nd accused should have paid heed to the fact thatthe 2nd accused was neither identified at the scene by Dias nor was heidentified at the identification parade. This supports his version that hedid not get down from the lorry but slept in his seat. These are matterswhich are favourable to the 2nd accused the benefit of which he isentitled to. Instead, however, the learned trial Judge misdirectedhimself when in his judgment he referred to Dias having identified allfour accused that night when in fact he had not identified the 2ndaccused. This may well have clouded his judgment. The learned trialJudge has failed to analyse the evidence carefully and he has notconsidered whether the explanation given by the 2nd accused wasreasonably true. Instead, he has at the end of his judgment concludedthat on the evidence that it has been proved beyond reasonable doubtthat the 1st and 2nd accused had committed the offences ofhousebreaking and theft in furtherance of a common intention tocommit those offences.
Even though the learned trial Judge was not Convinced of0the truthof the 2nd accused's version, still it was his duty to consider whetherhis version was reasonably true. Because if the explanation given bythe 2nd accused might reasonably be true, although the learned trialJudge is not convinced of its truth, the 2nd accused is entitled to anacquittal. Had the learned trial Judge carefully considered the totalityof the evidence led in the case, I think he may have arrived at a findingthat the explanation of the 2nd accused is reasonably true.
For these reasons,' I set aside the convictions and sentencesentered against the 2nd accused and I acquit him on counts 1 and 2.The appeal is allowed.
Appeal allowed and appellant acquitted.