046-NLR-NLR-V-49-THE-KING-v.-USMAN.pdf
The King v. Usman.
143
1948Present: Soertsz S.P.J. and Nagalingam J.
THE KING v. USMAN.
S. C. 223—D. C. Colombo (Criminal), 1,281.
Penal Code, as. 443 and 490—Attempt to commit housebreaking—Accused caughttrying to open a window—Sufficiency of evidence.
Where an accused was caught attempting to open a window of a house—Held, that the evidence was insufficient to sustain a charge of attempt tocommit housebreaking as it did not point clearly or necessarily to the conclu-sion that he was trying to enter the house.
1 (1934) A. I. R. Sind, p. 185 at 187. * 11 Bombay Law Reports 1153 at 1155.
144
SOEKT8Z SJP.J.—The King v. Usman.
-A-PPEAIi from a judgment of the District Judge of Colombo.
Accused appellant in person.
J.A. P. Cherubim, C.C., for the Attorney-General.
January 15, 1948. Soertsz S.P.J.—
The accused in this case was charged with attempting to commithousebreaking under section 443, read with section 490 of the PenalCode. The evidence upon which this charge is based is the evidenceof the complainant, which we accept without any hesitation, that hefound the accused attempting to open a part of a window which wassecured by means of a piece of wire. The other part of that windowhad been securely fastened with a bolt. At the time the complainantfound the accused so engaged the accused had not succeeded in openingthe window at all. He was merely found in the act of trying to forceopen the window. He had not even succeeded in opening the windowto the extent of being able to introduce his hand through the opening.In these circumstances the question arises whether the charge of attemptto commit housebreaking is sustainable. Crown Counsel says that areasonable inference to be drawn from what the accused was foundto be doing is the inference that he intended to enter the house. Thatis a reasonable inference, no doubt, but it is not the only reasonableinference that can be drawn in view of the fact that the complainantappears, as is quite easily understandable, to have acted rather preci-pitately in arresting the accused at that stage without waiting till theaccused proceeded to an extent which would have made his factionunequivocal. As matters stood at the stage at which the accused wastaken into custody it cannot be said, in our opinion, that his action wasunequivocal and that it pointed clearly and necessarily to the conclusionthat he was trying to enter this house. As Crown Counsel himselfsubmitted in the course of his argument, it may be that the accusedwanted to open that part of the window in order to peep into the house,and in that case I do not think that a charge of attempt to commit house-breaking could be maintained. Perhaps the accused did this just tospy out the possibility of a successful entry into the house and it may bethat when he discovered that there were people in the room he wouldhave beaten a hasty retreat without entering the house at all. In thesecircumstances, again, it would be impossible to say that the accused wasattempting to commit housebreaking.
In the circumstances I think this conviction must be set aside and theaccused acquitted.
Nagalingam, J.—I agree.
Accused acquitted.