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PUNCHI v. BABA APPU
NLR3V170
PUNCHI v. BABA APPU et al.
P. C, Matara, 31,475.
Evidence-Presumption of theft from recent possession of stolen property- Conviction of one of several joint occupants of a house or room, or one of several persons who had equal access to an open box, where recently stolen property is found-Proof of exclusive possession.
In a case of theft of property, no definite presumption of guilt could be made against the accused, if the property stolen were only found lying in a house or room in which he lived jointly with others equally capable with himself of having committed the theft, or in an open box to which others had access.
In order to raise this presumption legitimately, the possession of the stolen property should be exclusive as well as recent.
Empress v. Malhari, VI., I. L. R., Bombay Series, p. 731, followed.
UPON a petition presented by one Nonatcho, who described herself as the daughter of Kirinda Arachchige Baba Appu, who was convicted on the 27th of June last in the Police Court of Matara for the offence of theft of a box and its contents of the value of Rs. 35 from a building used as a human dwelling, Mr. Justice withers called for the record of the case, in order to satisfy himself as to the legality of the conviction and sentence passed upon him.
His Lordship set aside the conviction and acquitted Baba Appu in the following judgment.
25th July, 1898. Withers, J-
In my opinion the conviction is not a legal one, there being no evidence to support it. The facts are briefly these: -
On the 3rd June this Baba Appu and Punchihamy, his wife, were produced by the police before the Court with a stolen box and some of the articles contained in it when it was stolen. The first witness for the prosecution, Punchi, identified the box as hers, and deposed that early at daybreak on 2nd June she missed this box, under circumstances which indicated that some one must have stolen it. She was much distressed on this discovery, but was relieved by her brother coining and telling her that her box was in the house of Punchihamy, first accused. At the close of this person's examination, the accused were apparently called upon to show cause why they should not be convicted. Punchihamy, the wife, made this statement.: " This box produced was found in my
" house. I saw it there when I returned home yesterday morning " (2nd June) from my sister's house. I do not know who brought " the box there. The second accused is my husband. He sent " for the key of our house while I was at my sister's, and I sent the " key by a child. I did not steal these articles."
Baba Appu, the second accused, made this statement: " I never " borrowed the key from my wife, I do not live with her, I lived " apart from her for the last five or six years."
According to the constable, he was informed of this theft about 10.30 a.m. on 2nd June. He went to the house where the box was said to be and found it there. The house was unlocked by the first accused and the constable was admitted. While he was making the search the second accused came up.
The prosecutor's brother, Mathes, deposed that on hearing of this box he suspected the first accused Punchihamy, and it was on his information that the police searched the house. It would seem that the ground of this witness' suspicion was the fact that first accused has a brother in the hamlet, who is a notorious thief.
This witness confirmed the second accused's statement, that he and his wife lived apart. They had lived apart, according to this Mathes, for more than a year in consequence of a quarrel.
That was the case for the prosecution. Then, the first accused Punchihamy gave evidence on her own behalf, and she said that she did not steal the articles in Court. She saw them one morning, about a month ago, in her house, and did not know how they came there. They were not there the night before.
According to her, her husband, the second accus
