The Attorney General V. Rawther

Present: Bertram C.J. and Ennis and De Sampayo JJ. 1924.

THE ATTORNEY-GENERAL v. RAWTHER.

770-P. C. Colombo, 2,396.

Retaining stolen property-Presumption of guilt from recent possession- Counter presumption of innocence of accused-Benefit of the doubt- Burden of proof-English law of evidence for questions not provided for-" May presume "-" Soon after "-" Unless he can account for his possession "-" Reasonable explanation "-" Explanation which may reasonably be true "-Obligation of accused to call witnesses named by him in support of his explanation-Penal Code, s. 394-Evidence Ordinance, ss. 100 and 114.

A stolen pair of nail scissors was found within about fifteen days of the loss in the locked drawer of a locked almirah of which the accused had the keys. The accused, when charged with dishonestly retaining stolen property, said that he did not put them there, but that his son had access to the almirah, and that he frequently gave him the keys. He also said that his son had bought them from one Junaideen. He named Junaideen and his son as his witnesses, but did not call them at the trial. The Magistrate said in his judgment: "It cannot be disputed that the explanation given by the accused may reasonably be true,1 [2] and also " I am not satisfied with the explanation." He acquitted the accused, following the principle laid down in Perera v. Marthelis Appu. [1 (1919) 21 N. L. R. 312. ] The Supreme Court affirmed the order of acquittal.

BERTRAM C.J.-The possession of property recently stolen casts upon the possessor the necessity or onus of giving an account of that possession. But this principle must be considered in the light of an overriding counter-presumption, namely, the presumption of the innocence of the accused. This is what is meant when it is said by the burden of proof, notwithstanding any presumption which may arise from the facts, lies upon the prosecution throughout.

The principles laid down by the Court of Criminal Appeal in England in R. v. Abramovitch [2 (1915) 84 L. J. K. B., 398.] and by the Supreme Court on Perera v. Marthelis Appu (supra) considered and explained.

" By ' an explanation which may reasonably be true,' I think Lord Beading simply meant ' a reasonable explanation.' "

"To say that an explanation is reasonable means that it is reasonable in all the known circumstances of the case. Whether an explanation in any particular case is a reasonable explanation will depend on all sorts of factors, such as the status, the manner, the demeanour of the accused ; the explicitness and fulness of the explanation, or, on the contrary, its meagreness and reserve ; on the readiness or reluctance of the accused to support it by oral or documentary evidence where such evidence should be available.

But if there is any circumstance which entitles the Court or the jury to say that the explanation is false, and the Court or jury so finds, then such explanation cannot be considered reasonable."

Where an accused mentions witnesses in support of his explanation, the question whether it is reasonable for the accused or for the prosecution to cite the witnesses must depend on the circumstances of the case. It is not likely that the thief from whom the accused received the property will give a frank account of the circumstances, and allowance must be made for any reluctance on the part of the accused to call him.

ENNIS J.-In considering whether an accused has accounted for his possession of stolen property, the strength of the presumption to be dispelled must first be ascertained. How " soon after " the theft was it found in the accused's possession ? The presumption gets weaker as time goes by, till the point is reached where no presumption can be drawn. That point of time will vary according to the nature of the article. If it be a common thing readily passing from hand to hand in the every day business of human life without much tho

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