THE ATTONEY-GENERAL v. RAWTHER

082-NLR-NLR-V-25-THE-ATTONEY-GENERAL-v.-RAWTHER.pdf


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Present: Bertram C.J. and Ennis and De Sampayo JJ,1934.THE ATTORNEY-GENERAL v. RAWTHER,770—P. G. Colombo, 2,396.
Retaining stolen property—Presumption of guilt from'recent possession—Counter presumption of innocence of accused—Benefit of the doubt—Burden of proof—English law of evidence for questions not providedfor—" May presume ”—“ Soon after ”—“ Unless he can accountfor his possession ”—“ Reasonable explanation ”—“ Explanationwhich may reasonably be true ”—Obligation of accused to callwitnesses named by him in support of his explanation—PenalCode, s. 394—Evidence Ordinance, ss. 100 and 114.
A stolen pair of nail scissors was found within about fifteen daysof the loss in the locked drawer of a locked almirah of which theaccused had the keys. The accused, when charged with dishonestlyretaining stolen property, said that he did not put them there, butthat his son had access to the almirah, and that he frequentlygave him the keys. He also said that his son had bought themfrom one Junaideen. He named Junaideen and his son as hiswitnesses, but did not call them at the trial. The Magistrate saidin his judgment: “ It cannot be disputed that the explanationgiven by the accused may reasonably be true,12 and also “ I am notsatisfied with the explanation.” Ho acquitted the accused,following the principle laid down in Perera v. Marthelis Appu.xThe Supreme Court affirmed the order of acquittal.
Bertram C.J.—The possession of property recently stolen castsupon the possessor the necessity or onus of giving an account ofthat possession. But this principle must be considered in the lightof an overriding counter-presumption, namely, the presumption ofthe innocence of the accused. This is what is meant when it issaid by the burden of proof, notwithstanding any presumption whichmay arise from the facts, lies upon the prosecution throughout.
The principles laid down by the Court of Criminal Appeal inEngland in R. v. Abramovitch2 and by the Supreme Court onPerera v. Marthelis Appu (supra) considered and explained.
“ By c an explanation which may reasonably be true,’ I thinkLord Reading simply meant * a reasonable explanation.’ ”
To say that an explanation is reasonable means that it isreasonable in all the known circumstances of the case. Whetheran explanation in any particular case is a reasonable explanationwill depend on all sorts of factors, such as the status, the manner,the demeanour of the accused; the explicitness and fulness ofthe explanation, or, on the contrary, its meagreness and reserve ;on the readiness or reluctance of the accused to support it by oralor documentary evidence where such evidence should be available.
1 (1919) 21 N. L. R. 312.2 (19/5) 84 L. J. K. B., 398.
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But if there is any circumstance which entitles the Court or thejury to say that the explanation is false, and the Court or jury sofinds, then such explanation cannot be considered reasonable.”Where an accused mentions witnesses in support of his explana-tion, the question whether it is reasonable for the accused or forthe prosecution to cite the witnesses must depend on the circum-stances of the case. It is not likely that the thief from whom theaccused received the property will give a frank account of thecircumstances, and allowance must be made for any reluctance onthe part of the accused to call him.
Ennis J.—In considering whether an accused has accounted forhis possession of stolen property, the strength of the presumptionto be dispelled must first be ascertained. How “ soon after ”the theft was it found in the accused's possession ? The pre-sumption gets weaker as time goes by, till the point is reachedwhere no presumption can be drawn. That point of time willvary according to the nature of the article^ If it be a commonthing readily passing from hand to hand in the every day businessof human life without much thought such as a pair of scissors, thepoint would soon be reached …. Whether any particularperson would be likely innocently to possess such a pair woulddepend on his status in life, and once again the point of time willvary with that status. To say that the accused has not satisfiedthe Court that “ he came by the property honestly ” is a vagueground for rejecting an explanation, and it overlooks the mainquestion which is always: “ Does the evidence prove beyond areasonable doubt the guilt of the accused. The evidence must'establish the guilt of the accused, not his innocence. His innocenceis presumed in law.”
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HE facts are set out in the following judgment of the PoliceMagistrate (W. J. L. Rogerson, Esq.):—
The following are the reasons for my decision in this case. It is arather difficult case of retaining stolen property. A silver manicureset was stolen from Stewart place. On information received theCriminal Investigation Department Inspector searched the house ofaccused. The latter produced the keys and in the locked drawer of alocked almirah was found the pair of scissors belonging to the stolenset. These facts are admitted.
I do not know what explanation accused gave of lus possession to thepolice, as the police are not allowed to give evidence of statements madeby the accused unless the defence puts such questions, which in thisconnection it may be advisedly they refrained from doing. I furtherassume that the explanation was not satisfactory, or accused wouldnot have been charged under section 394. In view of the finding ofthese presumptions, which I am entitled to make, I called on theaccused ior his defence. When answering the charge accused hadsaid : “ My son bought this from Junaideen ; I did not know about it,”and he named as witnesses Junaideen and Pitche. Now, Junaideenhas been convicted of retaining another part of the same set. Accusedgave evidence on his own behalf that he allows his son to have accessto the almirah, and that he lends him the keys for this purpose, andthat lie was not aware that his son had put the scissors in the almirah.He adds that he is a man of means, intending the Court to infer that
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be is not the kind of man to be a depository of stolen property of scarcevalue, such as this pair of scissors. It will be noticed that allthose statements of accused are, so to speak, exparte. They are notcorroborated. He does not call his son who it appears is in the list ofprosecution witnesses. I have nothing before me to corroborateaccused. As to his means, he might be a man of means who had madehis living by dealing in stolen property, and could not resist thetemptation of former habits. He has not allowed me to know whatexplanation he gave to the police when the scissors were found. Thatis the case against accused. In his favour it may be said that it does *not appear to have hindered the police at their search. He producedthe keys when demanded. No other stolen property was found in thehouse. He is not apparently a dealer at present.
Mr. de Jong for accused has quoted the Chief Justice’s decision in21 N. L. U., p. 312. The law as expounded there was followed by Mr.Justice de Sampayo in 23 N. L. B.t p. 337. In the former decisionthe principles which govern the question are fully discussed. In-thatcase as in this, we have to merely ask ourselves whether it is reasonablein the circumstances of the case to presume that the articles wereknowingly retained by the person in whose possession they were found.The Chief Justice continues: “ It has been customary to say‘ Here is a man found in possession of recently stolen property. It is forhim to say how it came into his possession. The onus is shifted onhim. If he does not satisfy the Court that he came by the propertyhonestly he should be convicted.’ I have often put the principlein this way myself, and it has the high authority of a Lord ChiefJustice of England. A recent case has however put the principleon a more exact basis. That case is B. v. AbramovUch.1 It isa case which has attracted some attention, and, indeed, is causingmisapprehension, so that in a case Darling J. remarked that * it hadbecome a positive nuisance.’ The law as now laid down by LordHeading C.J. and the other Judges is-as follows :—‘ In a case where acharge is made of receiving stolen property well knowing the sameto have been stolen, where the prosecution have proved that the personcharged was in possession of the goods and that they had been recentlystolen, if an explanation has been given by the accused, then it is forthe jury to say whether on the .whole of the evidence they aresatisfied that the prisoner is guilty. If the jury thinks that theexplanation given may reasonably be true, although they are notconvinced that it is true, the person is entitled to be acquitted, inasmuchas the Crown would then have failed to discharge the burden imposedon it by law, of satisfying the jury beyond reasonable doubt of theguilt of the prisoner. The onus of proof is never changed in thesecases, it always remains on the prosecution.’ ” It now remains to applythe principle there stated.
It is I think obvious that if this principle is applied in the presentcase, the accused must be acquitted. He has given in Cou rt anexplanation which may reasonably be true even if we are not satisfiedof its truth. There is not enough material to satisfy us of its truth,but it can hardly be disputed that it may reasonably be true.
It will also be admitted that the principle thus stated is very differentfrom that stated by Lord Alverstone and previously applied by theChief Justice of Ceylon. If I had applied that principle to this case Ihould have convicted the accused, as I am not satisfied that he cameby the stolen property honestly. If accused had known that principlegoverned his case, he must have called as witnesses his son and1 (1915) 84 L. J. K. B. 398.
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Junaideen. However, as His Lordship the Chief Justice has appliedthe new principle, and Mr. Justice de Sampayo has followed thatdecision, this Court is bound to do the same. I may venture, however,with all respect to express my opinion in this very important ques-tion I would draw attention to the words “ the burden imposed byour law of satisfying the jury beyond reasonable doubt of the guiltof the prisoner.*' It appears to me that it was this very judgment thatimposed this burden on the Crown for the first time. Previously theprinciple appears to have been that stated by Lord Alverstone, “ thepossession of recently stolen property throws on the possessor the onusof showing that he got it honestly.” The principle laid down by LordBeading is therefore not an absolute principle of law, but a newprinciple replacing a former one. If I may presume to say so it appearsto me that the principle stated by Lord Alverstone is of the two moresuitable to conditions in Ceylon. In England the police are able toprove the explanation, if any, given by the accused, when the goodswere found in his possession and unless he adheres to that explanationat his trial the jury will draw an inference against his honesty. InCeylon the accused may make any explanation that he likes at thetime of the finding of the goods, and at his trial he may make any otherexplanation and the Court is not able to discover whether this explana-tion is the original one or a new one, unless the accused is prepared toquestion the police on the point. For in Ceylon a police officer is notallowed to give evidence of any statement made to them by an accusedperson. This artificial restriction on the prosecution seems to me tojustify my opinion that the principle of Lord Alverstone is the mostsuitable to Ceylon law. If the new principle is adopted it imposes onthe prosecution a burden which it will sustain with very great difficulty.It puts the accused in an unnecessarily advantageous position as isplainly shown by this case. It is true that the judgment in R. v.Abramovitch1 states that the Court is not laying down any new state-ment of the law, but is merely re-stating it.- But the judgment says:“ The onus of proof is never changed in these cases, it always remains onthe prosecution. * * Whereas Lord Alverstone had stated: ‘ ‘ The possess,ion of recently stolen propertythrowsonthepossessortheonusof showingthat he got it honestly.’* With respect I find it difficult to understandhow these two statements of the law are statements of the same prin-ciple, and do not express two different and contrary principles of law.
Garvin, K.C., S.-G. (with him Dias, C.C.), for Crown, appellant.
R. L. Pereira (with him De Jong), for respondent.
The following authorities were cited at the argument:—{1911)
K. B. 149 ; 9 Hals., pp. 682, 368, section 719 : 12 N. L. R. 278 ;5 C. W. R. 237; 3 Bah 204; 3 Cr. Ap. R. 1 ; 21 N. L. R. 312 ;4 C. W. R. 355; 23 N. L. R. 337; Archbold, pp. 678, 312, 402 ;
Gour. p. 1901; 84 L. J. K. B. 397 ; 86 L. J. K. B. 810 ; 87 L.J. K. B. 733 & 735; 2 Cr. Ap. R. 217.
May 14, 1924. Bertram C.J.—
This case was set down for argument before a Court of threeJudges in view of certain perplexities which seem to have been causedby a judgment of the Court of Criminal Appeal in England in thecase of R. v. Abramovitch (supra) which was followed in this country in1 (1915) 84 L. J. K. B. 398.
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Perera v. Marthdis Appu1 and Kandiah v. Podisingho,2 These
perplexities, as will be seen, have not been confined to this country, Bertramand, indeed, it was pointed out in Per era v. Marthdis Appu (supra) C.J.that Darling J.> speaking of the case of R. v. Abramovitch (supra), saidthat it had become " a positive nuisance.” The learned Magistrate, Attomey-against whose judgment an appeal is taken in this case, has very pUwtherlucidly explained the difficulties he has felt in following the principlelaid down in that case, and has in effect asked for a reconsiderationof that principle, at any rate, in its application to Ceylon. I willproceed, therefore, to submit that principle to further examination.
I would, however, observe that the difficulty that has arisen inconnection with R. v. Abramovitch (supra) has not been caused by thegeneral principle which it enunciates, but by a particular expressionin the judgment of Lord Beading C.J., and it will be necessaryspecially to consider that expression.
As a result of the examination of the authorities, the conclusionsI have come to are as follows:—
The intention of the framers of the Indian Evidence Act was tocodify and establish in India the principles of the English Law ofEvidence (already in force in that country) subject to certainparticular modifications supposed to be necessitated by localcircumstances. These modifications are easily identified, and arenot in conflict with the general purpose of the Act. Similarly, whenour own Evidence Ordinance was passed, the Legislature entertainedthe same intention, and this was emphasized by section 100 whichprovided for recourse to the English law for the purpose of allquestions not provided for. In construing any provision of ourOrdinance it is, in my opinion, not only legitimate but necessary tohave regard to this resumed intention of the Legislature, and inparticular to the history of the principle embodied in the provision.
Now, it is one of the first principles of the English Law of Evidencethat presumptions may be drawn without definite proof from factswhich in the nature of things justify such presumptions. A factso presumed is treated as true until the contrary is proved. Theprinciple is thus framed in Archbold, 22nd ed.9 p. 312 : “A presumptionis where some facts being proved another follows as a natural orvery probable inference or conclusion from them ; so as readily togain assent from the mere probability of its having occurred,without further proof.” The fact thus assented to is said to bepresumed, that is, taken for granted until the contrary be proved bythe opposite party. Stabitur prcesumptioni donee probetur incon rarium, Go. Litt., 272. The same principle is expressed in otherwords in section 114 oi our own Evidence Ordinance.
Now, though this principle is perfectly general in its terms, yet inpractice it has come to be thought of in connection with certaindefinite categories, and the first and foremost of these categories,
1 (1919) 21 N. L. B. 312.* (1921) 23 N. L. B. 337.
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both in the recognized text-books and our own Ordinance, is thatof the possession of property recently stolen. It is a recognizedpresumption that the possessor of property recently stolen who cangive no explanation, or no reasonable explanation, of his possessionis either the thief or the receiver. This presumption is not apresump-tion of law, but a disputable presumption of fact. The principlemay quite justly be put in this way that the possession of propertyrecently stolen casts upon the possessor the necessity or onus ofgiving an account of that possession. It was, no doubt, in thissense that Lord Alverstone C.J. in R. v. Powell1 said: “Thepossession of recently stolen property throws on the possessor theonus of showing that he got it honestly/’
But this does not conclude the matter. There is a counterpresumption of so fundamental a character as to override thepresumption already explained.. And it is in the light of this counterpresumption that the former must be considered. This counterpresumption* as I have indicated, is one of the most fundamentalpresumptions of the English criminal law though nowhere mentionedin the Evidence Ordinance—a circumstance which must be re-membered when it is suggested, as it was originally suggested bythe Acting Solicitor-General, that our Evidence Ordinance isintended to be a complete and exhaustive code. That presumptionis the “ presumption of innocence,” and it is thus formulated inTaylor on Evidence, 10th ed., p, 113 :—
“ One of the most important of disputable legal presumptions isthat of innocence. This, in legal phraseology, ‘ gives thebenefit of a doubt to the accused/ and is so cogent thatit cannot be repelled by any evidence short of what issufficient to establish the fact of criminality with moralcertainty. In civil disputes, when no violation of the lawis in question* and no legal presumption operates in favourof either party, the preponderance of probability, dueregard being had to the burthen of proof, may constitutesufficient ground for a verdict. To affix on any personthe stigma of crime requires, however, a high degree ofassurance ; and juries will not be justified in taking such astep, except on evidence which excludes from their mindsall reasonable doubt.”
This is what is meant when it is said that the burden of proof ,notwithstanding any presumption which may arise from the factslies upon the prosecution throughout, and it is this principle thatthe decision of the Court of Criminal Appeal in R. v. Abramovitch(supra) was intended to recall and to re-emphasize.
It will thus be seen that this decision did not, as the learnedMagistrate suggests, introduce new law, but re-affirmed the old.
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The principle of that decision is, moreover, of general application.It is not confined to cases of stolen property, but it applies to allcases in which a primd facie case has been established against theprisoner, and he is called upon to answer it. Nor properly consi-dered is there any inconsistency between that principle and thedictum of Lord Alverstone C.J. in B. v. Powell above quoted.If further assurance of this fact is needed it may be found in a state-ment of that principle by Lord Alverstone himself in B. v. Stoddart.1That was not a case of receiving stolen property but of obtainingmoney by false pretence, but the words are of general application.
On page 242 he says :—
“ The question, however, in this case is as to the direction whichought to be given where, as in this case, the defendant gaveand called evidence in answer to that primd facie case.It seems to us that the jury should have been told that ifthey accepted the explanation given by and on behalf ofStoddart, or if that explanation raised in their minds areasonable doubt as to his guilt, they should acquit him,as the onus of proof that he was guilty still lay upon theprosecution. If upon the whole evidence the jury areleft in a real state of doubt, the prosecution has failed tosatisfy the onus of proof which lies upon them.”
I may appropriately conclude this part of my judgment by citingan explanation of B. v. Abramovitch (supra) given by the Court ofCriminal Appeal in the subsequent case of B. v. Norris.2 Though thejudgment of the Court is delivered by Avory J., it has the con-currence of Beading C.J. himself. He says : “ In that case (B. v.Abramovitch (supra) the question arose as to whether the jury hadbeen properly directed, and the Court came to the conclusion that theeffect of the summing up was to impose on the prisoner the burdenof proof; and the Court in order to dissipate that view decidedthat the burden of proof was always on the prosecution to satisfy thejury that the prisoner knew that the goods were stolen at the timehe received them. The question whether he has given a satisfactoryexplanation of his possession is to be taken into consideration asevidence as to whether he knew the property was stolen or not.”
But the perplexity that has been created by B. v. Abramovitch(supra) does not arise so much from any difficulty in apprehending itsprinciple, but from a particular expression used by Lord Reading instating it. In framing this statement Lord Beading made a slightverbal departure from the customary phraseology. Instead of theordinary expression “ a reasonable explanation ” he used theexpression “ an explanation which may reasonably be true ”—“ If the jury think that the explanation given may reasonably betrue, although they are not convinced that it is true, the prisoner is1 (1909) 2 Cr. Ap. R. 217 on p. 242.* (1917) 86 L. J. K. B. 810.
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entitled to be acquitted.” I doubt whether Lord Beading had anyspecific intention in making this verbal variation. By “ anexplanation which may reasonably, be true/’ I think he simplymeant, “ a reasonable explanation.” But the expression seems tohave been interpreted as though it meant, “ an explanation which isphysically possible.” At any rate, in R. v. Norris (supra) the juryfound, firstly, that the prisoner’s explanation might reasonably betrue ; and secondly, that it was not true in fact. It is satisfactoryto note that it has been authoritatively declared by the judgmentin this case that these two findings are incompatible.
To say that an explanation is reasonable means that it is reasonablein all the known circumstances of the case. As my brother Ennishas said, whether an explanation in any particular case is a reason-able explanation will depend on all sorts of factors, such as the status,the manner, the demeanour of the accused ; the explicitness andfulness of the explanation, or, on the contrary, its meagreness andreserve ; on the readiness or reluctance of the accused to support itby oral or documentary evidence where such evidence should beavailable. Butif there is any circumstance whichentitles the Court orthe jury to find that the explanation is false, and the Court or juryso finds, the)i such an explanation cannot be considered reasonable.
It was no doubt with special reference to this sentence of LordBeading that the Court of Criminal Appeal observed in R. v. Badash1that “ it is a mistake to suppose that there is any special sanctityto be attached to the words of that judgment.” It would seem tobe better therefore to adopt as the test of the accused’s liabilitynot this sentence of Lord Reading, but the principle formulated byLord Alverstone in R. v. Stoddart (supra). Even the explanation,of R. v. Abramovitch (supra) given in R. v, Nor>is (supra) andquoted above is not free from pitfalls as it uses the expression “ asatisfactory explanation- ’ ’ This seems to imply that the explanationmust satisfy the Court, but that is not necessary; all that isnecessary is that the explanation should inspire a reasonable doubtas to the truth of the charge. That principle equally applieswhether a primd facie case is met by giving.or calling formal evidenceor by a statement from the dock under section 188.
Before passing to the facts of the case, it may be well to considera certain aspect of the matter, namely, the question of the obliga-tion of the accused, where he mentions witnesses, to call thosewitnesses in support of his explanation. The cases on the subjectare collected by Archbold in the section dealing with Presump-tions (Booh part II., ch. 2, section 3). In some cases it washeld that the onus of calling witnesses to rebut the explanationlay upon the prosecution, e.g.t R.v. Crawhurst% cited by De SampayoJ. in Kandiah v. Podisingho (supra); in others it was held that it1 (192$) 87 L. J* K, B. 733.2 (2884) 2 C. & K. 370.
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was not incumbent on the prosecution to call the witnesses to whomthe prisoner had referred (see R. v. Wilson,1 R. v. Ritson2 R. v.Crawhurst (supra)). The test adopted by Alderson B., in summingup to the jury, was : “ that in cases of this nature you should take itas a general principle, that where a man, in whose possession stolenproperty is found, gives a reasonable account of how he came by it,as by telling the name 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 the account is false; but if the account givenby the prisoner be unreasonable or improbable on the face of it,the onus of proving its truth lies on him.” It is perhaps best to saythat whether it is reasonable for the prisoner or for the- prosecutionto cite the witnesses must depend on the circumstances of the case.The case of Kandiah v. Podisingho (supra) decided by my brother DeSampayo was a case in which it was not reasonable that the accusedshould be called upon to cite the witnesses. But in all these casesit should be borne in mind that if the property really was stolen, thewitness referred to as the person from who the prisoner receivedit is almost certain to be directly or indirectly connected with thecrime. It is not likely that such a witness will give a frank accountof the circumstances, and allowance must be made for any reluctanceon the part of the accused to call him.
The Solicitor-General has pressed upon us the circumstance thatthese principles have been evolved in England, where the explana-tion of the accused is, as a rule, given at once to the constable makingthe arrest, and where this explanation oan be tendered in evidenceat the trial; whereas in Ceylon such an explanation cannot betendered in evidence, and it would be useless for the prosecutionto cite the witnesses mentioned in the explanation, because at thetrial the prisoner might give a totally different explanation, and the.Court would know nothing of what he originally said.
It is perfectly true that in R- v. Kalu Banda 3 this Court, differingherein from the Courts in India held that a statement by an accusedperson, though exculpatory and not confessional in intention, mayyet be a “ confession ” under our own special definition, when fromthis statement taken in conjunction with other circumstances theCourtis asked to infer the guilt of the accused. The Solicitor-Generalreferred to a recent decision of the Privy Council which he suggestsmay some day induce us to reconsider this point of view. That mayor may not be the case, but there is no occasion for us to go intothis matter on the present appeal. So. far as the calling of witnessesis concerned, this difference of law and practice does not seem to meseriously to matter, even though the original statement of theaccused cannot be given in evidence. Our Code provides that assoon as he is brought before a Magistrate, or, at any rate, as soon as
i 26 Zr. J. M. C. 45.2 15 Cox. 478 C. C. R,
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the ease for the prosecution is ready, he shall be given an oppor-tunity of making a statement under section 188. The trial does notby any means always take place immediately upon such a statement,and it is always possible for the prosecution to ask for anadjournment for the purpose of making inquiries with regard to anywitnesses mentioned by the prisoner. 1 see no reason why in sucha case as this a prisoner’s statement Bhould not be taken by theMagistrate before an adjournment is ordered under section 189.
1 will now proceed to consider the facts of the case. Here thestolen property was a pair of scissors—a person called Junaideen hadbeen convicted of stealing it—the stolen property was found in thelocked drawer of a locked almirah. The accused had the keys ofboth drawer and almirah. These facts were proved, and the onlystatement made by the accused was : “ 1 am not guilty ; my songot this from Junaideen ; I do not know about it.” He cited twowitnesses—Junaideen himself and a person described as Pitche—whether this person is a son of the accused is not clear.
I think that the learned-Magistrate was perfectly justified on theconclusion of the case for the prosecution in declining to accept thisas a reasonable explanation and in calling upon the accused to enterupon his defence. This statement is altogether too meagre andperfunctory to be treated as a reasonable explanation. Theaccused on being called enlarged this explanation. He explainedthat his son (who appears to' have been an adopted son) had accessto the almirah; that he lives in the house and that he is trustedby the accused ; that he is given the key when he wants it, and opensthe almirah even in the absence of the accused. He did not professto know when the son had put the property there. His explanationis in fact that the scissors must have been put there by the accused’sson. Assuming that the almirah contained property of both theaccused and the son (as to which no question was asked), this is, onthe face of it, not an unreasonable explanation. The only questionis whether the accused ought to have called his son to support it.Certainly, when a member of the accused’s family is mentioned inthis way, one might expect the accused to call him. A Magistratemight be justified in declining to treat such an explanation asreasonable, unless the member of the family were called. In thepresent case, however, the position is by no means clear. The sonwas in fact according to the statement of the Magistrate on the listof witnesses for the prosecution. The decision of the defence notto call the son may have been affected by this circumstance, and alsopossibly by a misinterpretation of the sentence in Lord Reading’sjudgment above referred to. I think it would certainly have beenmore satisfactory if the son had been called, and as I have saidthis would be a case in which it would be natural that the onus ofcalling the son should lie upon the accused. The learned Magistrate,as I read his judgment, did not, in fact, believe the story of the
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accused, that is to say, he was not convinced that”it was true.He says : “ There is not enough material to satisfy us of its truth/’and again : “ I am not satisfied that he came by the stolen propertyhonestly.” But he does not state that the prosecution had satisfiedhim of the guilt of the accused beyond all reasonable doubt. I amjiot prepared to say on the evidence in this particular case that heought to have declared himself so satisfied, and I do not think thatit would be just to the accused at this stage to send the matter backfor further inquiry. The Solicitor-General did not seriously pressfor this course. What I understand to be chiefly desired is afurther explanation of the general principles applying to the question.I trust that the explanation which we have given will be of assist-ance to those who have to administer the law. In my opinionthe appeal must be dismissed.
Eirarrs J.—
This is an appeal from an acquittal. The accused was chargedwith dishonestly retaining stolen property, knowing or havingreason to believe it to be stolen property. The property in questionwas a pair of nail* scissors which were found in the house of theaccused in the locked drawer of a locked almirah of which theaccused had the keys. The scissors formed part of a silver manicureset which was stolen with other jewellery from a house in Colpettyon November 2 by some thieves who had entered a bedroom whilethe owner of the property was at dinner. The accused gaveevidence and admitted that the scissors were found in his almirah.He said he did not put them there, but that his son had access tothe almirah ; that he trusted him and frequently gave him the key.It is here to be observed that, in answer to the charge, the accusedhad previously said that his son bought the scissors from oneJunaideen, and he had named Junaideen and his son as witnesses.The accused was represented by counsel at the trial, but neitherJunaideen nor the accused's son were called. The learned Magis-trate in judgment discussed two cases, viz.,JPerera v. Marthdis Appu(supra) and Kandiah v. Podisingho (supra). He came to the conclu-sion. that these cases introduced a new principle drawn from a decisionof Lord Reading in the English case of R. v. Abramovitch (supra),,aprinciple which he thought differed from the principle laid down byLord.. Alverstone in R- v. Powdl (supra) which had hitherto beenfollowed in Ceylon. The Magistrate then said, with regard to theaccused's explanation as to his possession of the stolen propertythat “ it can hardly be disputed that it can reasonably be true,”and that on the new principle he was bound to acquit. But headded that he was not satisfied that the accused came by theproperly honestly, and that on what he understood to have beenthe former principle he would have convicted the accused. It isto be observed that in R- v. Abramovitch (supra) it was expressly

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Bertram
C.J.
Attorney-General v.Rawther
1924,
EnnIs J.
The
Attorney-General vRawther
( 396 )
mentioned that the law there stated was not a new statement ofthe law, but merely a re-statement of it.
On appeal it was urged that the learned Magistrate had notapplied himself to the real matter for decision in the case, but haddecided on a misapprehension of the authority referred to by him.
I do not propose to discuss the English law on the subject, becausethe Ceylon law supplies sufficiently safe and explicit rules for theguidance of the Courts in arriving at a decision in such a case.
Section 114 of the Ceylon Evidence Ordinance, No. 14 of 1895,says that a Court may presume (illustration A):—
“ That a man who is in possession of stolen goods soon after thetheft is either the thief or has received the goods knowingthem to be stolen, unless he can account for his possession.”
I have underlined the word may, because it cannot be too clearlystated that it is not necessary to make such a presumption in everycase. The status, personality, or demeanour of the accused maybe such as to stay the Court from making any such presumptionin the one case,whereas in the other, with an exactly similar explana-tion, such a presumption may well be drawn. Again, the evidenceled by the prosecution may have disclosed a view of the case whichwould make the drawing of such a presumption inequitable.
The next observation on this section, so far as this case is concernedis in connection with the words “ soon afterThe theft was onNovember 2, the stolen scissors were found in the possession ofthe accused on November 17. Is this So “ soon after ” the theftas to give rise to the presumption 1 It is a question of fact in eachcase which must be weighed with other facts in the case when all theevidence is passed in review before a decision is arrived at. It issufficient to note for the moment that it affords time for the stolenproperty to have passed from hand to hand, even into innocenthands, by normal bargain and sale; there is not that strong pre-sumption that would arise if the goods had been found, for instance,the day afte^ the theft.
Finally, there are the words “ unless he can account for hispossession.” From the point of view of Ceylon law, it is on theinterpretation of these words that the case has come up on appeal.The learned Magistrate has, in effect, said : “ It cannot be disputedthat the explanation given by the accused may reasonably be true,”and also : “ I am not satisfied with the explanation^’ If, by thesecond statement, the learned Magistrate meant that he had asuspicion only that the explanation, was not true, then the decisionto acquit the accused was right. But it has been urged on appealthat the Magistrate meant that the explanation, when weighed bya reasoning process, that is, considered with the other facts in thecase, and having regard to the common course of natural events,human conduct, and business, was not reasonably true. Such a
( 397 )
construction would be in conflict with, the statement which theMagistrate says cannot be disputed. For myself, I cannot helpfeeling that the Magistrate meant that the explanation was quitea possible one considered by itself, but not so when considered withother facts in the case. In considering whether an accused has“ accounted for ” his possession of stolen property, the strength Ofthe presumption to be dispelled must first be ascertained. How“ soon after ” the theft was it found in the accused’s possession ?The presumption gets weaker as time goes by, till the point is reachedwhen no presumption can be drawn. That point in time will varyaccording to the nature of the article. If it be a common thingreadily passing from hand to hand in the everyday business ofhuman life without much thought, such as a pair of scissors, thepoint would soon be reached. In this case the scissors were silverscissors worth Rs. 5, and whether any particular person would belikely innocently to possess such a pair would depend on hisstatus in life, and once again the point of time will vary with thatstatus. To say that the accused has not satisfied the Court that“ he came by. the property honestly” is a vague ground forrejecting an explanation, and it overlooks the main question which,is always—Does the evidence prove beyond a reasonable doubt theguilt of the accused ? The evidence must establish the guilt of theaccused, not his innocence. His innocence is presumed in lawfrom the start of the case, and his guilt must be established beyonda reasonable doubt. What such a reasonable doubt is can begathered.from the definition of “proved” in connection with“ fact ” given in the Evidence Ordinance :—
“ A fact is said to be proved when, after considering the mattersbefore it, the Court either believes it to exist, orconsiders its existence so probable that a prudent manought, under the circumstances of the particular case, toact upon the supposition that it exists.”
If the explanation is so probable, in the circumstances that aprudent man would accept it, then there is a reasonable doubt asto the guilt of the accused, or no presumption from his possessionof the property can safely be made. In the present case the learnedMagistrate in effect says that the explanation given is, on the faceof it, a probable one. Are the circumstances of the case such asto show that the probabilityis “ so ” probable that a prudent manwould accept it.
The learned Magistrate has not told us anything as to the mannerin which the accused gave his evidence, and we do not know howthe demeanour of the witnesses impressed him. As I have indicate: >there is only one final question in every criminal case. Does theevidence establish beyond a reasonable doubt the guilt of theaccused ? And it is upon this question that the importance of the
1924,
Ennis J.The
Attorney*General v.Rawther
1924.
Ennis J.The
Attorney'General v.Rawlher
( 398 )
word “ evidence ” stands out. According to the Ceylon EvidenceOrdinance, the word ,e evidence/’ for the purpose of that Ordinance,means the statements of witnesses called “ oral evidence/’ andall documents produced for the inspection of the Court calledudocumentary evidence.” But "evidence” for the purpose ofdetermining the guilt of .an accused is far more than this. Itincludes everything which a prudent man would observe, note,and act upon in ascertaining truth. The absence of a document,the manner in which oral testimony is. given, the sincerity of awitness, his carriage, his look, his hesitancy or promptitude, and athousand and one other matters which are neither oral nor docu-mentary evidence. For instance, if the master’s stolen watch isfound in the servant’s pocket, and the servant, accused, say9" I do not know how it got there, some one must have put it there,”he probably will not be believed, but he may speak with suchobvious truth and dignity as to carry conviction. So also, if theservant's stolen watch is found in the master’s pocket, and themaster, accused, says : “ I do not know how it got there, some onemust have put it there,” he probably will be believed, unless hismanner is so evasive and furtive as to leave the truth of his wordsin doubt. The explanation is the same in both cases, the decisionmay well be different. The Court has to consider “ the matters ”before it as shown in the definition of " proved ” already cited.
We are in appeal called upon to say, without the advantage ofhearing and seeing the witnesses and without knowing the Magis-trate’s views, whether a verdict of acquittal should be set aside.We start, therefore, by observing that nothing for or against thetruth of the testimony has been noted as regards the demeanour ofthe witnesses.
* The Magistrate has drawn an inference adverse to the accused,from the fact that he does not know what explanation was madeby the accused to the police at the time of his arrest, he assumesthat the explanation was not satisfactory, or the accused would nothave been charged. No such assumption can be made. The policewill proceed with a case when they think that there is sufficientground for proceeding, just as a Magistrate will issue a summonsunder section 151 of the Criminal Procedure Code when he is ofopinion that there are sufficient grounds for proceeding. Noassumption adverse to the accused' can be drawn from the fact thathe has been charged. Then the Magistrate has commented adverselyon the fact that the accused did call evidence in corroboration ofhis own. He did not call his son or Junaideen. Both these menwere on the list of witnesses for the prosecution. It may be assumedthat if the son were ready to give evidence that would help to provethe guilt of the accused, he would have been called by the prose-cution. With regard to Junaideen the Magistrate tells us that hehas been convicted for retaining some of the rest of the property
stolen, when the scissors were stolen. It is difficult to see how itcould serve the accused to call a convicted thief.
In favour of the accused the Magistrate observes that he doesnot appear to have hindered the police in their search. He producedthe keys when demanded, and no other stolen property was foundin his house. The accused stated that he was a well-to-do man ;that he owned properties which he leased out; and that Junaideenhad taken a sub-lease of one of these properties from a tenant of his.These facts are borne out by a witness for the prosecution, Haniffa,who said that at one time he was a rent collector for the accused,but never collected any rent from Junaideen. As this witness hadhimself been sued by the accused, his evidence can probably berelied upon. The purchase of a pair of scissors worth Rs. 5 by theson of such a man from a person whom he might meet and speak todaily would not be primd facie an unlikely event, and, as the sonlived with the father, anything purchased by the son would be likelyto be found in the father’s house. The fact that ample time elapsed,after the theft and before the discovery of the scissors, for a thiefto have disposed of pieces of the stolen property to ordinarypurchasers and the likelihood of his doing so, supports in somedegree the accused’s story, and the fact that a single item only, outof many stolen, is found in the house of the accused also makesthe story less unlikely.
In view of all these facts, it is not possble on appeal to say thatthe accused should not have been acquitted. I would accordinglydismiss the appeal.
1924.
Ennis J.
The
Attorney -General v.Bawther
De Sampayo J.—
The question which was intended to be settled by this appeal hasbeen fully discussed by my Lord the Chief Justice and my brotherEnnis. I agree with the view expressed by them, and there isnothing which I can usefully add.
Appeal dismissed.