030-SLLR-SLLR-1985-V2-LIYANARACHCHI-AND-OTHERS-v.-OFFICER-IN-CHARGE-POLICE-STATION-HUNNASGIRIYA.pdf
256
Sri Lanka Law Reports
[1985) 2 Sri LR
LIYANARACHCHI AND OTHERSv.
OFFICER-IN-CHARGEPOLICE STATION, HUNNASGIRIYA
COURT OF APPEAL.
MOONEMALLE. J. AND BANDARANAYAKE. J.
C. A. 402 – 403/80.
M C. TELDENIYA 13411.
MARCH 4. 1985.
Criminal Law – Theft – Abetment of theft – Assisting in concealing or disposing ofstolen property – Section 396 of the Penal Code – Dishonestmisappropriation – Misjoinder – Presumption of innocence – Right to silence.
The 1 st accused-appellant was convicted of the theft of four gallons of diesel oil from abus of the Ceylon Transport Board while being driver thereof and the 2ndaccused-appellant of abetment. The 1 st accused-appellant was also convicted of in thesame transaction voluntarily assisting in the concealing or disposing of stolen propertyknowing it to be stolen. At the conclusion of the case for the prosecution the Magistratewhile informing the accused of his right to give evidence told them that if they did notgive evidence it was open to the Court to conclude they were guilty.
Held –
The joinder of the charge of theft with that of voluntarily assisting, in the sametransaction, in the concealing or disposing of stolen property against the 1staccused-appellant was bad. The offence of voluntarily assisting in the concealing ordisposing of stolen property under section 396 of the Penal Code is meant to deal witha situation when subsequent to the theft, persons deal with stolen property but cannotbe punished for receiving or retaining such property as the evidence falls short ofpossession.
CA
Liyanarachchi v OIC. Police Station, Hunnasgmya
257
The lsi accused-appellant being an employee of the C.T.B entrusted with thebus from which the diesel oil was taken, could not have committed theft as he alreadyhad lawful custody of the stolen property. The offence of which he could have beenproperly accused was dishonest misappropriation but as there was no doubt regardingthe facts led in evidence the Court cannot alter the conviction to one of dishonestmisappropriation without charging the accused afresh
As the facts do not disclose the offence of theft no charge for abetment of theftcan be maintained
The presumption of innocence which is an expression of the privilege againstself-incrimination is a recognised principle of criminal justice in Sri Lanka Thepresumption carries with it the corollary of the right to silence. The Magistrate waswrong to give the accused the impression that if they remained silent they do so at theirperil.
Cases referred to :
Stephen v Inspector of Police, Fort 11966) 69 NLP 42.
Salgado v Mudali Pulle (1941) 43 NLR 94.
APPEAL from the judgment of the Magistrate's Court of TeldeniyaD. S. Wijesmghe for accused-appellants.
Y. J W. Wijeytilleke. S. C for Atiorney-GeneraL
Cut adv vult■
June 6. 1985.
BANDARAIMAYAKE, J.
The 1st accused-appellant was charged on two counts, viz : (0 withthe theft of 4 gallons of diesel oil. the property of the C.T.B. whilstbeing a driver or servant of the Board, and (ii) in the same transactionwith assisting in the concealing or disposing of stolen propertyknowing it to be stolen. The 2nd accused-appellant was charged with(i) abetment of the said offence of theft and (ii) with assisting in suchconcealing or disposing of the said stolen property knowing it to bestolen
The 1 st accused-appellant was at the relevant time a driver of theC.T B. The.prosecution case was that at about 7.30 p.m a C.T.B.bus stopped a short distance away from the house of witnessJayatilleke and a short while thereafter Jayatilleke saw the 2ndaccused-appellant siphoning off a quantity of diesel oil from the tank ofthe bus. The 1st accused-appellant whom he knew well was standingbeside the 2nd accused-appellant. Later the bus was reversed by the1st accused-appellant who struck against a temporary-shed put up by
258
Sri Lanka Law Reports
I1985J 2 Sri L.R
the witness and the shed collapsed. Witness then made a complaintto the Grama Sevaka that same night about the destruction of hisbuilding. Witness has not however made any mention of the removalof diesel oil from the bus by the accused-appellants. Another witnessJinadasa said that that same night he bought 4 gallons of diesel oilfrom the 1 st accused-appellant. He gave his diesel can and a rubberhose for that purpose. An empty can and a rubber hose were found inthe bus that same night by the Police.
Upon a complaint made to the Hunnasgiriya Police the same nightthe Police found the two accused-appellants and the cleaner sleepingin the bus that same night which was parked on the road near witnessJayatilleke's house;
Counsel for the accused-appellants besides canvassing the findingsof fact urged several matters of law which h£ submitted vitiated theconvictions of both accused-appellants. In the first place he submittedthat the charges of theft and assisting in the concealing or disposing ofstolen property cannot be framed against an accused at one trial ashaving been committed in the same transaction He cited the case ofStephen v. Inspector of Police. Fort (1) in support and submitted thatthe charges against the 1 st accused-appellant were therefore bad inlaw.
As a second matter of law learned Counsel submitted for theconsideration of the Court that the facts are clear in that the 1staccused-appellant was an employee (a driver) of the C.T.B. entrustedwith the bus and as such even if the evidence is believed he could nothave committed the offence of theft as he already had lawful custodyof the stolen property and that the proper offence should have beenone of misappropriation. This was pointed out to the learnedMagistrate who nevertheless convicted the accused of theft. Counselsubmitted that as there was no doubt upon the facts led in evidencethe Court cannot alter the conviction to one of dishonestmisappropriation in any case. In support of this submission he cited adecision of Moseley S. P. J. (in the case of Salgado v. MudaliPulle (2))that where on the facts there could be no doubt as to the particularoffence, then it is not open to the Magistrate to convict the accusedon an alternative charge without charging him afresh. The convictionof theft was in-these circumstances bad in law.
CA Liyanarachchi v. OIC, Police Station, Hunnasgiriya fBandaraneyake, J )259
For a third matter of law learned Counsel pointed to the proceedings<u p 22 -The accused were defended by Counsel. Yet, at the close ofihe prosecution case the learned Magistrate has, whilst calling uponthe accused-appellants for their defence informed them that they hada right to give evidence but that if they do not testify, the Court has a'right to convict them. The Smhala words used are :"oea gctosEDjoi Os5fi>ax5t£iBi 0d<®c5{£)® 06 Skd«)ssc: «95®c) ft)Sea® as©SS.” The 1st accused-appellant then
elected to give evidence and denied the charges. The 2nd accused didnot testify. It was submitted by Counsel for the appellants that thisstatement of the Magistrate amounted to a threat and had the effectof compelling the accused to testify for fear of conviction and that thisamounted to an illegality that vitiated the trial.
It is my opinion that there is merit in the first matter of law raised.The offences of theft and that of voluntarily assisting in knowinglyconcealing or disposing of stolen property are distinct offences whichcould not be committed by the same person in a continuingtransaction. The offence of theft is complete with the moving ofproperty dishonestly out of the possession of a person. The offencepunishable under s. 396 is meant to deal with situations where,subsequent to the commission of the offence of theft, persons dealwith stolen property but cannot be punished for receiving or retainingsuch property as the evidence falls short of possession The joinder olCounts 1 and 3 against the 1 st accused-appellant is therefore bad inlaw.
As for the second matter of law raised the facts of the instant caseare clear thet the 1st accused-appellant was at the relevant time adriver of the C.T.B. and therefore had possession of the vehicle andthe diesel. The learned Magistrate has sought to rely on s.366illustration (d) where a servant commits theft by dishonestly runningaway with plate entrusted to him by his master. The Magistrate seeksto distinguish between being in 'charge' of property and havingpossession' of property. The distinction is misconceived in thecircumstances. In the offence of theft the object is to deprive a personof possession and the offence is complete as soon as the property ismoved' in order to dishonestly take it, Dishonest misappropriation isdifferent. The offender is already in possession and further, there mustbe misappropriation or conversion. That is to set apart or assign theproperty to a wrong person or for wrong use The facts show that the
260
Sri Lanka Law Reports
[1985] 2 Sri L.R.
diesel oil from the C.T.B. bus was sold privately to a witness for profit.There has therefore been a conversion of the property to theaccused-appellants' use. The facts being so. the appropriate chargeshould have been one of dishonest misappropriation and not merely oftheft The illustration cited to s 366 therefore has no application to thefacts. The facts being clear, the conviction for theft is bad in law Asthere was no doubt in regard to the offence committed on the facts, s.1 76 of the Criminal Procedure Code Act has no relevance and cannotbe applied to this case. A fresh charge would have been appropriate inthe circumstances.
As regards the third matter of law raised in the appeal, the wordsused by the Magistrate in calling upon a defence are unfortunate. Itcertainly leaves an impression that an accused would remain silent athis peril The presumption of innocence which is an expression of theprivilege against self-incrimination is a recognised principle of criminaljustice m Sri Lanka, The presumption carries with it the corollary of theright to silence. The failure of an accused to give an explanation whenone is expected may give rise to discretionary presumptions asprovided by law but one must not choose words which may give anaccused an impression that he must testify if he wants to stand achance of an acquittal. In the circumstances, this objection is entitledto succeed as the accused have been deprived of the substance of afair trial The 2nd accused-appellant has been convicted on Count 2only, namely of abetment of theft and acquitted on Count 3 As thefacts do not disclose the offence of theft as stated earlier but ofcriminal misappropriation for which there is no charge his convictiontor abetment ot the offence of theft cannot be maintained For thesereasons. I set aside the convictions of both accused on all Counts anddischarge them from the proceedings
MOONEMALLE. J. – I agree.Conviction set asideAccused discharged.