1918. Present: Bertram C.J.

PERERA v. MARTHELIS APPU.

892-P. C. Negombo, 33,281.

Recent possession of stolen property-Presumption of guilt-Authorities examined-Burden of proof-Penal Code, s. 894.

On the night of September 14, 61' coconuts were plucked from sixteen trees on an estate. Next morning 60 freshly plucked nuts were found in a small cadjan enclosure situated at a distance of three to eight fathoms from the house of the accused, which was situated a quarter of a mile from the estate. The enclosure was surrounded by cadjans, which could have been opened and entered by anybody. In the house itself were 600 other coconuts ready for sale. These 60 coconuts were hidden in a ditch and covered over with cassava sticks. The accused was charged with dishonestly retaining stolen property (Penal Code, section 894). The accused said that there were persons who were ill-disposed towards him, and that it was possible that these persons had put the nuts into his enclosure in order to get him into trouble.

Held, that the burden of proof of innocence had not been shifted on to the accused, and that in all the circumstances of the case the Crown had not discharged the onus which lay upon it of proving beyond all reasonable doubt the guilt of the accused.

The authorities on the question of presumption of guilt arising from recent possession of stolen goods examined.

Per Lord Beading C.J. cited in the judgment:-"If an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the prisoner is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitled to be acquitted, inasmuch as the Crown would then have failed to discharge the burden imposed upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner. The onus of proof is never changed in these cases, it always remains on the prosecution."

THE facts appear from the judgment.

A. St. V. Jayawardene, for the appellant.

Aserappa, for the respondent.

December 19, 1919. BERTRAM C.J.-

The story of this case is as follows. On the night of September 14, 61 coconuts were plucked from sixteen trees on an estate at Aluthupola. Next morning 60 freshly plucked nuts were found in

a small cadjan enclosure situated at a distance which was variously put at three fathoms and eight fathoms from the house of the accused, which itself is situated about one-fourth of a mile from the estate in question. The enclosure was surrounded by cadjans about the height of a man, and could have been opened and entered by anybody. In the house itself were 500 other coconuts ready for sale. These 60 coconuts were hidden in a ditch and covered over with cassava sticks. This is practically the whole evidence. The accused is charged with dishonestly retaining stolen property. He does not give any definite explanation of the goods being found in his enclosure, but he says that there is a man called Andris, a reputed thief, who is on bad terms with him, and who lives within a " hoo " shout of his house, and that the watcher on the estate is a brother-in-law of Andris, and is also on bad terms with him. He does.- not, however, go so far as to charge Andris definitely with conspiring with the watcher to place the nuts within his enclosure. The learned Magistrate has found him guilty, and sentenced him to six months' rigorous imprisonment. I have been so struck by the number of charges of this character, both under section 394 of the Penal Code and under the various special Ordinances which have been passed for the protection of produce, that I thought it desirable to re-examine the authorities on the subject.

It is material to notice, in the first place, that the section under which the present charge is laid is not a section in any of the s