1942 Present: Soertsz and de Kretser JJ.

THE KING v. PIYASENA.

 64-D. C. Colombo, 395.

Cognate offences-Charge of theft-Power of Court to convict accused of assisting in disposal of stolen property-Doubt which offence the facts proved will . constitute-Criminal Procedure Code, ss. 181 and 182.

Where an accused person is charged with the offence of theft under section 367 of the Penal Code, the Court has no power to convict him of the offence of assisting in the disposal of stolen property under section 396 of the Penal Code.

Sections 181 and 182 of the Criminal Procedure Code which enable a Court, when an accused is charged with one offence, to convict him of another offence apply where the different offences contemplated are cognate offences and it is doubtful which of these offences the facts proved will ultimately be found to constitute.

The doubt must arise from the nature of facts or series of facts and not from a failure to appreciate the value of unambiguous facts or from an inaccurate view of the position in law arising from those facts.

APPEAL from a conviction by the District Judge of Colombo.

H. V. Perera, K.C. (with him N. M. de Silva), for accused, appellant.

H. W. R. Weerasooriya. C.C., for Crown, respondent.

Cur. adv. vult.

November 26, 1942. SOERTSZ J.-

On February 24, 1942, Inspector Marjan reported to the Magistrate's Court in Colombo that the appellant and another had committed theft of a motor car, an offence punishable under section 367 of the Penal Code.

On that day, the appellant surrendered to the Court and, after the evidence of P. S. Herath had been recorded, the Magistrate explained to the appellant, in conformity with section 156 of the Criminal Procedure Code, the charge in respect of which the inquiry was being held. The non-summary form appearing at page 23 of the proceedings in the

Magistrate's Court shows that the charge of which information was given to the appellant was that of theft, an offence punishable under section 367 of the Penal Code.

Thereafter, the evidence of several witnesses was taken on several subsequent dates, and, at the close of the case for the prosecution, the Magistrate, acting in compliance with sections 159 and 160 of the Criminal Procedure Code, read and explained to the appellant the charge framed against him as one of abetment of theft, " an offence punishable under sections 367 and 102 of the Penal Code". The appellant was duly cautioned and he made a statement purporting to exculpate himself. The Magistrate, then, committed the appellant for trial before the District Court.

In the District Court, the indictment presented against the appellant charged him with the offence of theft under section 367 of the Penal Code, and this remained the charge throughout the trial.

At the conclusion of the trial, the Judge convicted the appellant of this offence, and sentenced him to a term of one year's rigorous imprisonment.

The appellant now appeals, and the main questions submitted for our consideration are : -

(a) Whether, on the evidence, the charge of theft can be said to have been established ;

(b) Whether, in the event of its being found that the charge of theft has not been established, it is open to us to alter the conviction to one under section 396 of the Penal Code, on the footing that the evidence establishes that the offence of the appellant was that of voluntarily assisting in the disposal of property which he knew or had reason to believe to be stolen property, an offence under section 396 of the Penal Code.

It is, I think, clear that, so far as the appellant is concerned, it is impossible to sustain the charge of theft. The evidence is that, at the time the appellant first came to take part in the transaction out of which this case arose, the offence of theft has already been committed. The car had been taken completely out of the possession of the owner. The appellant, if he