1947 Present: Howard CJ. and Jayetileke J.

THE KING v. JAYASENA

43-44-D.C. (Criminal) Colombo,977.

Offences of theft and dishonest receiving- several accused charged with theft- Possibility of convicting some of theft and some of dishonest receiving-Joinder of accused persons- Joinder of charges - Burden of proof in a prosection for dishonest receipt of stolen property- Penal Code, ss 369,394- Criminal Procedure Code, ss, 181, 182, 184.

Seven accused were charged with committing theft, Three of them were found guilty of theft, and the other four were convicted of dishonestly receiving or retaining the stolen property. The evidence showed that there was sop far as some of the accused were concerned, a measure of doubt as to whether the Court would draw the inference that the facts constituted theft or dishonest receiving of property.

Held, that even if the theft and dishonest receiving were not committed in the same transaction the joinder of all the accused in one charge was in order, and that it was open to the court under sections 181 and 182 of the criminal procedure code to find some of the accused guilty of theft and some of dishonest receiving.

Held, further, that, as the offence of dishonest receiving was in fact committed in the same transaction as the theft, the joinder of such offences was permissible under section 184 of the Criminal Procedure Code.
 
Where, in a prosection for dishonest receipt of stolen property, It is established that accused was in possession of goods stolen thel burden is on the accused to give an explanation which in the opinion of the court, might reasonably be true and which is consistent with innocence.

APPEAL against two convictions from the district Court, Colombo.

E.F.N. Gratiaen, K. C. (with him G. E. Chitty and A. E. Keuneman), for the  1st accused appellant.

F. A. Hayley, K.C. (with him Stanley Alles), for the 5th accused, appellant.

J. A. P. Cherubim, C.C., m for the Attorney-General.

Cur. adv. vult.

June 11, 1947. HOWARD C.J.-

In this case seven accused were charged with committing theft of 18 bags of dried chillies to the value of Rs. 900, property in the possession of R. J. Jayaratna Storekeeper, Subsidiary Foodstuffs Depot, Maradana, contrary to the provisions of section 369 of the penal code. The 2nd 6th and 7th accused found guilty of this offence and sentenced to a term of one year rigorous imprisonment. The 1st 3rd 4th and 5th accused were convicted under section 394 of the penal code of dishonestly receiving or retaining stolen property knowing or having a reason to believe the same to be stolen property and w also sentenced to a term of one year rigorous imprisonment. The 1st and 5th accused have appealed against their convictions.

The first point taken on behalf of the appellants is that there was a misjoinder of charges and that it was not open to the district judge to find any of the accused guilty of an offence under section 394 of the

Criminal Procedure code. Section 184 of the criminal procedure code deals with the joinder of charges against more persons than one and is worded as follows:-

"When more persons than one are accused of jointly committing the same offence or of different offences committed same transaction or when one person is accused of committing any offence and another of abetment of or attempt to commit such offence, they may be charged and tried together or separately as the court thinks fit; and the provisions contained in the former part of this chapter shall apply to all such charges".

The accused in this case were charged with committing the same offence and hence prima facie there appear to be no misjoinder. Again there would be no misjoinder if some of the accused had been charged under section 369 and some under section 394,provided that there different offences were committed "in the same transaction" Section 184 of the Criminal Procedure Code must be read wit