King V. William Perera, P.A.

[COURT OF CRIMINAL APPEAL.]

1944 Present: Howard C.J., Keuneman and de Kretser JJ.

THE KING v. P. A. WILLIAM PERERA et al,

49-M.C. Gampaha 18,370.

Evidence-Recent possession of stolen property-Presumption of theft or receiving stolen property-Presumption of fact-Evidence Ordinance, s. 114, illustration (a).

The two accused were charged with the offences, among others, of being members of an unlawful assembly the common object of which was to commit robbery and were convicted of committing offences punishable under sections 146 and 436, 146 and 333, 146 and 382 of the Penal Code.

The main evidence against the accused was that on the day after the robbery several hundred sheets of rubber, which were removed
from the bungalow which was broken to, were found in the houses of the two accused. The other evidence against the accused was that of two witnesses, who deposed that on the night of the robbery they met the first accused driving a cart, in which there were several other persons and that the second accused was walking behind the cart.

Held, that the evidence in the case coupled with the failure of the accused to give evidence raised an overwhelming presumption that the accused participated in the robbery.

It is a presumption of fact dependent on the surrounding circumstances in each case as to whether the accused is guilty of receiving stolen property or of theft, and in this case, of robbery.

APPEAL against a conviction by a Judge and Jury before 2nd Western Circut, 1944.

J. E. M. Obeyesekere (with him M. M. Kumarakulasingham), for both appellants. -There is no direct evidence implicating the appellants. The conviction is based entirely on the discovery of some of the stolen property, in their houses on the day after the robbery was committed. According to illustration (a) of section 114 of the Evidence Ordinance where the possession of stolen goods is not accounted for, two inferences are possible, namely, theft or the lesser offence of receipt of stolen property. In the summing-up in this case there is no direction to the jury that when the question arises whether the presumption of the graver offence or of the lesser offence is to be drawn it is for the prosecution to establish the graver presumption rather than for the graver presumption to be drawn in the absence of an explanation from the accused. The presumption in this case is more in favour of receiving than theft. The accused have not been indicted for any offence of receiving and are therefore entitled to be acquitted. See Emperor v. Mayadhar  Pothal [1 (1939) A. I. R. Patna 577 at 579.] ; Raghunath v. Emperor [2 (1925) 26 Cr. L.J. 1380 at 1383]; Reg. v. Langmead [3 (1864) 10 L. T. (N. S.) 350]; Pratap Lohar v. Emperor [4 (1936) A. I. R. Nagpur 200 at 202.].

There is no proof in this case that five or more persons took part in the robbery.

H. W. R. Weerasooriya, C.C., for the Crown. -In a case of recent possession of stolen property it is necessary to look into the surrounding circumstances to see whether such possession is evidence of theft or dishonest receipt. The nature of the article stolen, the time within which if was discovered, the improbable or unreasonable nature of the explanation given by the accused are all to be taken into consideration. The Jury in this case have elected to convict for theft and not for receipt, and their verdict is justified by the evidence. See Reg. v. Exall and others [1 (1866) 176 E. R. 850]; R. v. Densley and others [ 2 172 E. R. 1294.], R. v. John Bailey [3 13 Cr. App. R. 27.] .

There is evidence that five or more persons took part.

M. M. Kumarakulasingham replied.

Cur. adv. vult.

August 4, 1944. HOWARD C.J.-

The two accused appeal from their convictions on a charge of being members of an unlawful assembly and as such on further charges of committing offences punishable under sections 146 and 436, 146 and 333, 146 and 380, and 14

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