CPC CONSOLIDATED

 

Banda v. Haramanis - NLR - 141 of 21 [1919] LKHC 9; [1919] 12; (1919) 21 NLR 141 (18 July 1919) Present: De Sampayo J. 1919

BANDA v. HARAMANIS et al.

493 and 494-P. C. Henaratgoda, 16,418.

 

Possession of beef-Beef found in house occupied by father and son-No evidence as to who was responsible.

 

Two accused, father and son, who occupied the same house, were convicted of having been found in possession of beef, for which they were unable to account to the satisfaction of the Magistrate.

 

Held, that as there was nothing to show that either of the accused put 'the article there, or was responsible for its being found there, the conviction was bad.

 

"Possession to be criminal must be actual and exclusive, for criminal liability does not attach to constructive possession Where property is found in a house in the possession of more than one inmate, none of them could be said to be in possession of it for the purpose of this offence, unless there is evidence of exclusive conscious control against them. "

 

THE facts appear from the judgment.

 E. W. Jayawardene, for appellants.

 July 18, 1919. De Sampayo J.-

 The two accused are father and son, and occupy the same house. They have been convicted, under section 31 (1) of the Ordinance No. 9 of 1893, for being found in possession of beef, for which they were unable to account to the satisfaction of the Police Magistrate. It appears that a calf belonging to a man named Carolis was stolen, and on complaint being made, the headman made inquiries, "and among other things, he searched the house of the accused. There he found about 31/2 pounds of beef in a pot in the kitchen. One of the witnesses named Deonis gives evidence almost amounting to evidence of actual theft on the part of the accused, but that evidence is manifestly unreliable, and the Magistrate has not acted upon it. The question is whether either of the accused could be convicted under the provision in question. Mr. Jayawardene has referred me to page 1892 of the second volume of Gour, where the learned author states, with reference to authorities, that "possession to be criminal must be actual and exclusive, for criminal liability does not attach to constructive possession. . . . . From this it follows that, where property is found in a house in the possession of more than one inmate, none of them could' be said to be in possession of it for the purpose of this offence, unless there is evidence of exclu­sive conscious control against them. " This passage is a comment on the provision of the Penal Code as to the receipt or retention of stolen property, but the principle appears to be applicable generally. This point is further discussed and decided in the same sense in the case of Punchi v. Babappu.1 [ (1898) 3 N. L. R. 170.] Beyond the fact of the finding of the beef in the house, there is nothing in the case to show that either of the accused put the article there, or was responsible for its being found there. The evidence may disclose a case of strong suspicion against one or the other, or both of them, but I am obliged to give effect to the law on the subject, and to hold that actual exclusive possession could not be attributed to either of the accused.

 The convictions are, therefore, set aside.

 

Set aside.

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Further reading 

However it is not right on the part of the trial court to convict a possessor of such property on the sole ground of recovery of it from him. Though the court can draw a presumption under Section 114 of the Evidence Ordinance, simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. The culpability of the offence will depend on other circumstantial evidence, if any.

Further the presumption permitted to be drawn under Section 114 must be read along with the time factor. If the articles recovered are found in possession of a person soon after the murder, a presumption of guilt may be rightly permitted. On the other hand a presumption cannot be permitted after a considerable interval. On this aspect of the matter one has to be also mindful of the distance between the place where the offence in respect of the articles was committed and the place where they were later found.

It is settled law that the presumption concerned, is not confined to charges of theft alone, but extends to every offence including murder. This principle has been clearly illustrated in Rex vs. William Perera & Etin, 45 NLR 433 where it was held that possession by a person of property recently stolen from a house in the course of housebreaking and theft gives rise to the presumption that the possessor was either concerned in the housebreaking or possessed them with the knowledge of them being stolen.

It was held in Sanwat Khan vs. State of Rajastan 1956 AIR - SC 54 - 1956 Cr LJ 150  that the presumption cannot be drawn in the absence of any other evidence connecting the accused in the commission of murder even though the possession is recent and unaccounted for.

A long line of authorities both in Sri Lanka and India favour the extension of the application of the presumption to offences other than retention of stolen property, only after exercise of great care, particularly when direct evidence clearly exonerates the possessor of stolen articles, from having participated in the commission of the principal offence.

In the case of Cassim vs. Udayar 44 NLR 519, the maxim relating to this presumption, was enunciated by Wijeyewardene J in his own lucid style in a case where the lower court convicted the accused for housebreaking by night, theft and retention of stolen property. The case for the prosecution there was devoid of participatory evidence in the commission of house breaking and theft by the accused. Some of the goods burgled in Manner were discovered at Anuradhapura in the possession of the accused eight days after the commission of the offence. The Magistrate convicted the accused for house breaking by night and theft. Setting aside the conviction for housebreaking and theft Wijewardena, J stated that the accused is a hawker of goods and there is no evidence whatever to show that he was seen near the burgled house or even in Mannar at or about the time of the burglary. His Lordship considered it as being unsafe in the circumstances of the case to base a conviction for housebreaking and theft on the isolated fact of retention of stolen property, eight days later.

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