1930  Present: Garvin S.P.J.

KING v. AMITH.

12-D. C. (Grim.) Kandy, 4,286.

Aiding and abetting offence-Charge of theft-Failure of charge against principal offender-May the abettor be convicted of retaining stolen property-Power of Court to frame charge under section 172 of the Criminal Procedure Code.

An accused person who is charged with abetting another in the commission of theft cannot be convicted, as a principal offender, of the offence of retaining stolen property.

APPEAL from an acquittal from the District Court of Kandy. The first accused was charged with theft of tea from the possession of his employer under section 370 of the Penal Code. The second and third accused were charged with having abetted the first accused in the commission of the theft. The learned District Judge acquitted all the three accused. The appeal was against the acquittal of the third accused.

The grounds of appeal were that the District Judge should have, in pursuance of section 182 of the Civil Procedure Code, convicted the third accused of retaining stolen property, or

alternatively, that he should have framed a fresh charge against King tv the accused, invoking his powers under section 172 of the Criminal Amith Procedure Code.

E. V. R. Samarawickreme, C.C., for appellant.

April 16, 1930. GARVIN S.P.J.-

This is an appeal from an acquittal. The first accused, who was a teamaker on Kahawatta estate, was charged with theft of 267 lb. of tea, being property in the possession of his employer, an offence punishable under section 370 of the Penal Code. The second and the third accused were charged under sections 370 and 102 with having abetted the first accused in the commission of the said theft.

The District Judge acquitted all three accused. This appeal is against the acquittal of the third accused alone.

The case which the prosecution sought to establish was as follows: -

Late on the night of April 22 last the third accused hired a motor car at Matale and proceeded in it to Mandandawela to the boutique of the second accused. After a brief conversation the journey was resumed until they reached the Yatawatta junction. Near a tea factory the first accused approached the car, and at his request it went a little way and stopped close to the factory. Two coolies came up to the car and placed four bags in it. The car then drove back. On the way some Police officers whistled and signalled to the car, but it did not stop.

The third accused, who, it is suggested, felt that discovery would follow, caused the car to be stopped near a cacao garden and had the bags unloaded. He poured petrol over them and set fire to the bag which contained tea. Hawadiya, the owner of this garden, says he saw the third accused in the garden and came across a heap of tea, of which he says 2 or 3 lb: had not been burnt. He questioned the third accused, who admitted that the tea had been stolen and appealed to him not to give information. Hawadiya, however, did procure the attendance of the Arachchi, who made a brief inquiry and took the third accused to the Police Station.

There can be little doubt that if the prosecution succeeded in establishing its case, the first accused was guilty of theft and the third accused at least of aiding and abetting him.

The District. Judge, however, declined to act on the testimony of those witnesses who implicated the first accused, holding that they were accomplices, and that whether they were accomplices or not he was not prepared to act on their testimony. Under these circumstances. the failure of the charge of theft as against the first accused necessarily involved the failure of the charge made against the third accused of abetment of the first accused.

"I am compelled, " said the District Judge, "to discharge the accused. I feel that the third accused should have been charged with having retained stolen property, or under the Estate Produce  Ordinance.

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