041-NLR-NLR-V-19-GNANAPRAKASAM-v.-BULNER.pdf
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1916-
Preaent: De Sampayo J.
GNANAPRAKASAM v. BULNER.
t
502—^P. C. Gampola, 9,487.
Theft—Removal of ooke from. the Railway yard—Bona fide belief , that itwoe thrown away—Penal Code, 8. 7ft.
Abandoned things cannot be the subject of theft. It is . notnecessary that the subject should, in fact, be a derelict; ft issufficient if the person charged' bona fide believed' it to be so.
rjl HE facts are fully set out in the judgment..
A. St. V. Jayewardene, for second accused, appellant.—It i6 dearfrom the finding of the Magistrate that the public believe thateoke was thrown away by the Railway authorities. The appellantbona fide believed that coke, was thrown away as entirely. useless:
' 'Section 72 of the Penal Code enacts that no offence is committed- by a person who by a mistake of fact believe® himself to be justifiedby law in doing, it. – The accused did not. get the coke removed“ dishonestly Counsel sited 17 Cal. 852 and 8 All. 51.
June 6, 1916. -De Sampayo J.—
Cur. adv. vult.
The charge against the appellant came to be. made in the followingcircumstances. A Moor boy, named Madar Lebbe, was detectedin the act of removing some coal from the Railway premises atNawalapitiya, and was promptly charged with theft of the coal.He told, the Court that he did not steal the coal but took .it on theorders of the appellant. He was convicted by the Magistrate andsentenced to be caned. The appellant was then made an accused,'and was charged with abetting .the theft. The appellant franklyadmitted that the boy was asked by her to bring some coke,which is . usually found thrown about the Railway yard, as shewanted it for use in a smoothing iron for baby linen. She addedthat she did not want coal, which was useless to her for the smoothingiron of for any other purpose; that she was under the impressionthat the cinders in the yard was discarded property and might betaken by any one; and that if she had known she could not take it,she would not have senk the boy . – The appellant is a respectableBurgher lady, and is wife of the .Postmaster of Nawalapitiya, whohas been in Government service for eighteen years, and there isno reason whatever to disbelieve her evidence. The boy, MadarLebbe, was called as a witness against her, but his evidence goes
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for nothing; In the first place, he was not present on -the day1916.
when he was to be cross-examined on behalf of the appellant: TheRtMp^v
proceedings contain this curious record:*r He is reported by the J.
Police to have been sent away , by the Post Office authorities. Onanapraka
But surely that cannot be. .The Police either did not mean whatearn v.
they said, or did not say what they meant. The caning which -Buinar
the boy received is, I think, a sufficient explanation as to how he
came thereafter to give the Police Court a wide berth. However
that may be, the appellant is not a Post Office authority, and cannot
have been meant by the Police, and I need not therefore consider
an affidavit submitted in appeal, in which she has sworn that she
was not responsible directly or indirectly for " the boy’s absence,
that she was wholly unaware of the fact, and that the boy was not
even a servant. The boy’s evidence was in any event not admissible
in law against the appellant, and ought to have been taken as
struck out. The importance of this point lies in the fact that the
only evidence whch. could in the remotest degree bear on the charge
is that of the boy, and the case is therefore reduced to one in which
there is no evidence against the appellant. In fairness to' the
appellant, however, I may say that, in my opinion, the boy’s evidence
as it stands, without being sifted by cross-examination, is insufficient,
even if admitted. At that stage of the proceedings the importance
of the difference between coal and coke or cinders was not noticed.
The Tamil word for both coal and coke is hari, which, as a matterof fact, means charcoal, and it is significant that the Police ConstableGnanaprakasam, who arrested the boy, said that he did so on theinformation of the Assistant Locomotive. Superintendent, who hadcomplained that the boy had removed “ charcoal !’ from theBailway yard. The accused says that she told the boy to bringsome kaii, meaning coke or cinders, and no doubt the boy’s cross-examination, if there had been one, would have been directed to.that point. The lady’s evidence makes it clear that the boy eithermisunderstood what she meant or disregarded her instructions,and took some coal instead of coke. The Magistrate, however,thinks that it makes no difference whether she sent for coal or coke.
There, I think, he is wrong. He is, of course, quite right in sayingthat the general public has no right to remove coke from the Railwaypremises, “ a thing which (he says) appears to be insufficientlyrealized. ” Herein lies the real point of the whole case. Theappellant candidly confesses that she had. not realized the fact atall, but, on the contrary, bona fide believed that the coke was thrownaway as entirely useless and might be taken by any. one withoutobjection. The appellant was undoubtedly mistaken in believingthat the Railway had abandoned this property. But the Magistratehas apparently failed to appreciate the effect of such a mistake offact. Abandoned things cannot be the subject of theft; they maybe taken by any one without committing an offence. Thus., it has
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1916.
Oh SautatoJ.
Onanapraha-
^amv.Bulner
been held in India that a bull which has been set at liberty by aHindu as part, of a religious ceremony is not the subject of theft,as the owner has abandoned his property in it (Bomeah Ghander v.Him Mondal,1 Rex v. BandShu a). It is not necessary that the subjectshould, in fact, be a derelict; it is sufficient if the person chargedbona fide believed it to be so. Section 72 of the Penal Code declares“ nothing is an offence whioh is done by any person …… who by
reason of a mistake of fact and not by reason of a mistake oflaw in good faith believes himself to be justified by law in doingit.” The law here accords with common sense. Moreover, thegist of the offence of theft is the taking of anCther’s property*' dishonestly This, again, means the intention to cause" wrongful loss ” to that person, but there can be no “ intention ”to cause wrongful loss to him when it is in good faith believedthat he has abandoned the property and no longer wishes tp have it.“ In such case,” says Mayne, ” the maxim ignorantia legie nemtnemexcusat has 'no application. The ignorance does not operate toexcuse the crime, but to show that one of the essential ingredientsof the crime is wanting.” 1 am accordingly of opinion that inthe circumstances of this case it is i ot possible to find the appellantguilty of abetment of the offence of theft.
The conviction is set aside, and the appellant acquitted.
Set aside.
i I. L. R. 17 Cal. 852.
* I. L. R. 8 All. 51.