JUDGMENTBY: MATHEW CJ

(delivering the judgment of the Court): -- The appellant was convicted of the murder of an old fowl-seller and was sentenced to death. The deceased met his death on 15th May, and on the 17th of May his body was discovered in an abandoned tapioca plantation. His hands and feet were tied and two sticks were lying near the body. Either of those sticks could have caused the injuries which resulted in his death.

It was proved that on the 16th of May the appellant pawned some jewellery which belonged to the deceased. Apart from this piece of evidence there is nothing to connect the appellant with the crime. One Saad gave evidence that he was called by the appellant to the scene of the killing and asked to assist in digging a grave; but in his summing up to the assessors the learned trial Judge directed them to disregard his evidence entirely and, presumably, when the learned trial Judge convicted the appellant he himself disregarded Saads evidence. The conviction then rests entirely on the proved fact that the appellant was in very recent possession of property of the deceased. Whether the deceased was carrying exhibits P9 and P10 on the day he met with his death is not certain. All that is known definitely is that exhibits P9 and P10 were handed to the deceased by his brother (P.W. 4) on the 2nd of May 1955 and that it was his habit to carry his valuables and money in a cloth belt round his waist.

In his summing up to the assessors, the learned trial Judge said:--

"Mr. Sheldon referred you to certain statutory presumptions and what he

told you is correct law, but they should not be applied unless you are

satisfied that no reasonable explanation of the recent possession of

the jewellery by accused has been given."

Presumably, the statutory presumption was illustration (a) of section 114 of the Evidence Ordinance, which reads:--

"The Court may presume --

(a) that a man who is in possession of stolen goods soon after the

theft is either the thief or has received the goods knowing them

to be stolen, unless he can account for his possession;"

Wills on Circumstantial Evidence, 7th edition, p. 104 has the following passage:--

"The possession of stolen goods recently after the loss of them, may be

indicative not merely of the offence of larceny, or of receiving with

guilty knowledge, but of any other more aggravated crime which has been

connected with theft. Upon an indictment for arson, proof that property

which was in the house at the time it was burnt, was soon afterwards

found in the possession of the prisoner, was held to raise a

presumption that he was present at, and concerned in, the offence; R

v Rockman (1789) 2 East PC p1035, and see R v Fuller (1816) R &

R 308. This particular fact of presumption commonly forms also a

material element of evidence in cases of murder; which special

application of it has often been emphatically recognised. It is upon

the same principle that a sudden and otherwise inexplicable transition

from a state of indigence and a consequent change of habits or a

profuse or unwanted expenditure inconsistent with the position in life

of the party, is sometimes a circumstance extremely unfavourable to the

supposition of innocence (R. v Burdock) (murder by poison)

Bristol Assn. Ap.1835, Cor: Sir Charles Wetherell, Recorder.

But the rule must be applied with discrimination, for the bare

possession of stolen property, though recent, uncorroborated by other

evidence, is sometimes fallacious and dangerous as a criterion of guilt.

"

In the present case, the only evidence to connect the appellant with the killing is the possession of two pieces of jewellery, the property of the deceased, and it is not certain that they were on the deceaseds person on the day of his death. In our view, this did not suppl

Click Here to Read the rest of this document