077-NLR-NLR-V-07-COORE-v.-ALLIS-APPU.pdf
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COOBE v. ALLIS APPU.P. C., Colombo, 85,056.
1904.
February 29
Dishonest retention of stolen property—Stolen bicycle found seven months after-wards in accused’s house—Evidence of dishonest receiving, to showdishonesty in retention—Penal Code, s. 994.
Where a bicycle, stolen seven months previous to the' prosecution, wasfound in the bedroom of B, who, having no means of livelihood, livedwith and was supported by A, his father, and B was unable to prove hisstatement that he had purchased it from C,—
Held, per Monckhff, J.,—that a charge of dishonestly ..retainingproperty knowing the same to be stolen does not negative dishonestreceiving, and that evidence which would establish a charge of dishonestreceipt may. although no charge of dishonest receiving is preferred, beused to show the dishonesty of the retention.yiahamadu v. Bandirala, 3 N. L. R. 267, questioned.
A X appeal against a conviction for dishonestly retaining a
•AX bicycle stolen from one Mr. Dix, knowing the same to bestolen. Each of the two accused was sentenced to one year’srigorous imprisonment under section 394 of the Penal Code.
Mr. Dix left it outside the Public Hall in Slave Island, Colombo,on 4th July, 1903, where he had gone to witness an entertainment.It was found some seven -months afterwards, on 3rd February,1904, by the police in the first accused's house, in the bedroom ofhis son, the second accused, who having no means of livelihoodwas supported by his father, a seller of milk.
The Police Magistrate (Mr. W. E. Thorpe), after reviewing theevidence led, said:“It is quite probable that the second accused
actually stole the bicycle, but recent possession cannot be proved;and as both say that it was bought, I am willing to believe theydid pay money for it, but I cannot believe either was not wellaware that he was buying stolen property. ” The Magistrate foundboth the accused guilty of dishonestly retaining the bicycle,knowing it to be stolen.
The first accused only (father of the second accused) appealed.
Dornhorst, K.C., for appellant.
Rdmanathan, K.C., for- respondent.*
Cur. adv. vult.
29th February, 1904. MoNcfREiFF, J.—
A bicycle belonging to Mr. Dix was stolen 'hbout the 2nd or 3rdJuly, 1903. At their trial on thrt 6th of February, 1904, thefirdt accused said that his son, the Second accused, got money fromhim seven or eight months ago to bwy that bicycle: and the second
1904.
February 29.
Monobkiit
J.
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accused said that he bought, the bicycle eight months ago from aman whom he called Pedrik Dance, but who, I think, had noexistence. The possession, therefore, began about the date of thetheft, as is proved by Pedrik Jansz, who is possibly the PedrikDance put forward by the second accused as the seller, and whosaid that he knew that the latter had had the bicycle six orseven months, but denied having sold it to him.
For some reason, which I do not understand, the accused werenot charged with dishonestly receiving but with dishonestlyretaining the bicycle, knowing or having reason to believe that itwas stolen, and the Magistrate curiously observes that recentpossession could not be proved. He also says—what I cannotagree with—that “ as both say it was bought, I am willing tobelieve that they did pay money for it. ” Then he adds that theaccused (who bought—if they did buy—the bicycle immediatelyafter the theft) must have been well aware that’they were buyingstolen property. I have no doubt they were. Their Counselcited Mahamadu v. Bandirala (3 N. L. R. 267) for the purpose ofshowing that Withers, J., considered that a charge of retainingnegatived dishonest receiving, and affirmed an honest receipt.That cannot be so.The charge of retaining simply means that
the accused are not charged with receiving; and in my opinion
evidence which would establish a charge of dishonest receivingmay, although no charge of dishonest receiving is preferred, beused to show the dishonesty of the retention. The conviction andsentences are affirmed.
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