092-NLR-NLR-V-23-KANDIAH-v.-PODISINGHO.pdf
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Present: De Sampayo J.
KANDIAH tr. PODISINGHO.822—P. C. Trincomalee, 3,025.
Retaining stolen property—Reasonable account given by accused—Burdenof proof that the account is false is on prosecution.
“ When a man, in whose possession stolen property is found,gives a reasonable account of how he came by it, as by telling thename of the person from whom he received it, and who is knownto be a real person, it is incumbent on the prosecution to show thataccount is false.”
r |1gE {acts appear from the judgment.
H.J. C. Pereira, K.G. (with him J. Joseph), for appellant.—Theaccused has given a reasonable explanation as to how he came by thearticles in question. In the face of that explanation, it is for theprosecution to prove that it was false. The prosecution has failedto do that. The accused has stated in evidence that the articles inquestion-were deposited with him by bne Appuhamy, and hasproduced his account books in proof of his statement. The learnedMagistrate was wrong in holding that the accused had failed toprove that the articles were left with him as security for a debt.
. Counsel cited Regina v. draiathurst1 and Perera v. MarthelisAppu*
September 15,1921. De Sampayo J.—
The accused was originally charged by the police with havingretained stolen property, namely, one sledge hammer and crowbar,one nail puller, and one hand fire blow, belonging to the CeylonGovernment Bailway. In the proceedings only one of thesearticles, namely, the sledge hammer, was identified. Accordingly,the Police Magistrate restricted the conviction oi the accused £> thatarticle, but I think the conviction cannot stand, in view of theevidence,and on the law bearing on the subject. The evidence as to lossof articles in the Railway Store is given by Mr. Marwood, Second. Assistant Engineer in the Batticaloa-Trincomalee Railway Extension.He could only say that since September, 1920, when the store wasopened, there has been a leakage, but as regards these articles hecould-not say when they were lost, and as I have said before, hedefinitely identified only the sledge hammer, which contained theletters “ C. G. R.” stamped omit. Th*e accused is a boutique-keeperin Trincomalee. The articles were found in his boutique, but he
^ 1 Car, <6 Kir. 370.* (1019) 21 N. L. R. 312.
27-i
1921.
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1921.
Da SampayoJ.
Kandiah 9.Podieingho
gave an explanation as to his possession, which is entitled to befavourably considered. He said that a man named 1>. Appuhamy,who was working on the Railway Extension, lodged in his boutique,and when he left, about two months ago, he owed the accused for foodand other things a sum of Rs. 10*50, and, not being able to paythat debt, he brought and left these articles in the accused’s boutiqueas security. The accused has produced the account which he haskept in Sinhalese, showing the receipt of the articles as securityfor the debt. There is nothing even distantly suggested that theaccused related a false story in any particular at all. I may addthat when the police went to the accused’s boutique to search forstolen articles, they found these articles in the boutique, and theaccused stated to the police exactly what he stated in Court, andmade no secret of having received the articles in the circumstanceshe stated. Not only did he mention the name of Appuhamy, but hestated that he had gone to Habarana in search of employment.
As regards the initials on the sledge hammer, be was questioned,in the course of his evidence, and he said he did not know English.The Magistrate remarks in his judgment that he does not believethe accused when he says that he did not understand what theletters “ C. G. R.” meant, although there is no evidence whateverto the contrary as to the accused’s knowledge of English. TheMagistrate also remarks that the accused has entirely failed toprove the existence of an agreement that these articles, were keptas security for a debt. The accused has proved it by swearing tothe fact and by producing his books in Court. I cannot understandwhat more the accused can do to' prove the existence of an agree-ment. Then, again, with regard to any attempt on his part tosatisfy himself as to the bona fides of Don Appuhamy, the Magis-trate says that he failed to make any inquiries as to the sledgehammer, as to how it came into Appuhamy’s hands, although hetraced the history of the other articles with great care. This, again,is inconceivable, because the accused has said that he questionedAppuhamy, and that he said that he bought the article in question.It seems to me that the whole case shows that the accused did notact dishonestly. He bona fide: accepted.the articles as security fromAppubamy.
With regard to the law it has been pointed out in many recentjudgments that: “ When a man, in whose possession stolenproperty is found, gives a reasonable account of how he came by it,as by telling thename of the person from whom he received it,and who is known to be a real person; it is incumbent on the prose-cution to show that account is false.”
I have quoted these words from the judgment of Alderson B. inRegina v, CrawQvwrst reported in Oarrington <b Kirwan’s Reports,vol.page370. I may also refer to Perera 9. Martheiis Appu,1 where
1 (1919) 21 N. Z. B. 312.
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Bertram O.J. has folly discussed the subject with reference to thelatest authorities. I think the law there expounded quite appliesto the accused in this case, and it must be held that the accused gavea reasonable account as to how he came by the articles, and that theprosecution has failed to satisfy the burden of proof to the contrary.The conviction is set aside.
1931.
Db 8ampayo
J.
Kandiah v.Podisingho
Set aside.