048-NLR-NLR-V-37-NAIR-v.-VELUPILLAI.pdf
248
SOERTSZ A.J.—Nair v. Velupillai.
1935[In Revision ]
Present : Soertsz A.J.
NAIR v. VELUPILLAI.
P. C. Jaffna, 7,752.
Loitering on public road—Elements of offence—Burden on prosecution—Meaning of word “ loiter"—Penal Code, s. 451.
In a charge under section 451 of the Penal Code the burden is on theprosecution to prove (1) that the accused was a thief or was reputed athief, (2) that he was loitering about a public place, (3) that his intentionwas to commit theft or other unlawful act.
The meaning of the word “ loiter ” explained.
C
ASE referred by the Police Magistrate of Jaffna for considerationby the Supreme Court.
July 11, 1935. Soertsz A.J.—
The question reserved by the Police Magistrate of Jaffna for considera-tion by this Court is whether the conviction entered by him in this caseis justified when the principle underlying section 451 of the Penal Codeis applied to the facts relied upon by the prosecution.
249
SOERTSZ A.J.—Nair v. Velupillai.
The accused man was charged in that being “ a reputed thief ” he was“ found loitering about on the public road with intent to commit theft orother unlawful act To establish such a charge the prosecution mustprove (1) that the accused was a thief or was reputed a thief, (2) that hewas loitering about any public place, (3) that his intention was to committheft or other unlawful act. The burden on all these points is on theprosecution. The evidence clearly establishes point (1). With regard topoint (2), I do not think that the evidence shows that the accused was‘ loitering ’. The word ‘ loiter ’ is defined in the Concise OxfordDictionary as meaning “ to linger on the way, hang about; travel indolentlyand with frequent pauses The evidence in the case bearing on thispoint is (a) that of Police Sergeant 1889 Nair, who says, “ I saw the accusedloitering about on the public road near the market ”. When the Sergeantused the word loiter in that way he begged the whole question involved.He should have spoken in detail as to the manner of the accused man’smovements and left it to the Court to decide whether those movementsamounted to ‘ loitering ’. However, when Nair was recalled on thenext trial date and cross-examined he elucidated this matter of loiteringand said, “ Accused …. was going along the road coming out ofthe market. I saw him getting on to road from the market. He waswalking In my opinion, the movements described here cannot bebrought under the definition of “ loitering ”.(b) That of Police Constable
1719 Weerabangsa. He says “ as we were coming along, I saw accusedgetting out of the market premises on to the road …. When I firstsaw him he was on the road …. Accused went from Grand Bazaartowards Hospital road This does not advance the case for the prosecu-tion on this point. In my opinion, the prosecution failed on point (2) andthe accused was entitled to be discharged on that ground alone. But,I should wish to consider how the case stands on point (3) as well. It wasfor the-prosecution to prove that the accused man’s intention was tocommit theft or other unlawful act. As the learned Magistrate rightlyobserves “ This intention has to be presumed from circumstancesThe intention to commit theft or other unlawful act must emerge clearlyfrom the circumstances relied upon. The Magistrate says, “ Accused wasarrested in a public place at an unusual hour and near the marketwhere goods are kept in unsafe buildings. I am justified in presumingfrom those circumstances that he was found in a public place with intentto commit an unlawful act. It was up toi the accused to explain his presencesatisfactorily. This he has failed to do Here the learned Magistratehas misdirected himself by confusing the section of the Penal Code underwhich the accused was charged, viz., section 451 with the preceding sectionwhich provides :“ Whoever is found in or upon any building or enclosure
for any unlawful purpose or whoever is found in or upon any building orenclosure and fails to give a satisfactory account of himself, shall bepunished, &c. That section expressly throws the burden on the accused toaccount for his presence. Section 451 throws no such burden on him.Therefore, it was wrong to take the absence of an explanation by theaccused, as one of the circumstances from which his ‘ intention ’ might beinferred. The other circumstances referred to are, in my opinion, not suffi-
250
SOERTSZ A.J.—Percro V. Toussaint.
cient for drawing the necessary inference. The prosecution failed on point(3) as well. I wish, however, to carry the matter a little further in order tosay that if a prima facie case had been made out against the accused—andin my opinion it was not—and the occasion thus arose for the accused toenter upon his defence, there is evidence given by the accused sufficientto raise a reasonable doubt with regard to the charge against him and toentitle him to claim an acquittal on that ground, for the burden is on theprosecution right to the end of the case and before it succeeds it musteliminate all reasonable doubts. The accused, upon being charged, said,“ On the very same day there was a case against me and I was discharged.I was arrested when I was returning from the bioscope ”. He gaveevidence to the same effect. That was his explanation. On the face of it,it is a reasonable explanation and it was incumbent on the prosecutionto show that that explanation was false.
At best, the case against the accused is a case of suspicion. I, therefore,think that the conviction is wrong and should be set aside.
Set aside.