1916. Present   : Wood Renton C. J. and De Sampayo. J.

THE KING v. KIRINERIS.

353-D. C. (Crim.) Kalutara, 2,929.

Penal Code, s. 212-Taking gratification to help to recover stolen property-Burden of proof.

In a charge under section 212 of the Penal Code it is not incumbent on the prosecution to show that the accused had not used " all means in his power to cause the offender to be apprehended o and convicted of the offence"; it is on the accused himself to prove affirmatively that he had.

THE facts are set out in the judgment.

Balasingham, for the accused, appellant.-There is nothing to show that the accused did not take all means in his power to cause the offender to be apprehended and convicted of the offence. The prosecution ought to have led at least some evidence to shift the burden of proof on to the accused.

The offense defined in section 212 does not consist in receiving money for helping a person to recover stolen property, but in receiving money and not taking '"' all means in his power to cause the offender to be apprehended," &c.

The clause beginning with " unless " does not introduce an exception, but forms part of the definition. Section 105 of the Evidence Ordinance does not therefore apply to this section. Section 106 of the Evidence Ordinance does not apply, as this is not a matter that is necessarily " a fact that is especially within the knowledge of any person, " Ac. But even if it were so, the prosecution should lead prima facie evidence. It is, for instance, not enough for the prosecution in the case contemplated in illustration (a) of section 106 of the Evidence Ordinance to merely prove that a person travelled by train. There ought to be proof that he had no ticket. Counsel referred to Ratanlal, Law of Crimes, p. 291; Gour, vol. I, p. 850; 136-D. C. (Grim.) Puttalam (August 10, 1905).

There is no proof that the bull was stolen.

Garvin, S.-G. (with him Obeyesekere, C.C.), for the Crown.-The clause beginning with the word " unless " introduces an exception, and it is for the accused to prove that the case falls within the exception. Counsel referred to Rex v. Naidappu,1[(1906) 1 A. C. R. 48.] Ranhamy v. Banda.2[(1906) 5 Tam. 137.]

Cur. adv. vult.

January 20, 1916. WOOD RENTON C.J.-

The appellant has been convicted by the District Judge of Kalutara of having received an illegal gratification from a man

Podi Singho, in connection with the recovery of a stolen bull, an offence punishable under section 212 of the Penal Code, and has been sentenced to nine months' rigorous imprisonment. The appeal was argued before me in the first instance, sitting alone, on the merits I referred it to a Bench of two Judges for the determination of a question of law, on which there had been convicting local decisions, namely, whether in a prosecution under section 212 of the Penal Code it is incumbent on the prosecution to show that the accused has not used " all means in his power to cause the offender to be apprehended and convicted of the offence, " or on the accused himself to prove affirmatively that he has done so. In 136-D. C. (Crim ) Puttalam,1 Wendt J. held obiter that the onus probandi was on the prosecution. In Ranhamy v. Banda2 Middleton J. declined to follow this authority, and ruled that the burden of proof was on the accused, and Lascelles C.J. came independently to the same conclusion in Rex v. Naidappu3

After careful consideration, I am of opinion that the two later decisions just referred to are correct. No great assistance is to be derived from the English, authorities on the point, inasmuch as in the corresponding section in the English statute4 the Legislature has made a corrupt receipt of the gratification an element in the definition of the offence; although in that statute, as in section 212 of the Penal Code, the clause which we have here to construe is introduced into the enactment by the word " unless, " and, as my brother