Karunaratne V. Inspector Of Police

1947 Present; Dias J.

KARUNARATNE, Appellant, and INSPECTOR OF POLICE,
Bambalapitiya, Respondent.

S. C. 378-M. C. Colombo South, 8,959.

Joinder of charges--Theft-Assisting in concealment of stolen property-No irregularity-Penal Code, ss. 367, 396.

It is not irregular to join a charge of theft under section 367 of the Penal Code with a charge of assisting in the concealment of stolen property under section 396.

Rahim v. Silva (1934) 2 C. L. W. 476, not followed.

APPEAL against a conviction from the Magistrate's Court, Colombo South.

No appearance for the accused, appellant.

J. G. T. Weeraratne, C.C., for the Attorney-General.

Cur. adv. vult.

 June 20, 1947. DIAS J.-

The appellant and one Edwin were jointly charged as follows:-(1) that on October 22, 1946, they committed theft of an electro magnetine fertilizing machine", the property of the Colombo Municipal Council, an offence punishable under section 367 of the Penal Code, and (2) in the alternative that they dishonestly disposed of that machine to one Jainul Abdeen of Skinner's Road knowing or having reason to believe that it was stolen property, an offence punishable under section 396 of the Penal Code.

Edwin has not been arrested. He is a proclaimed offender for whose arrest an open warrant has been issued.

The appellant was acquitted under count 1, but was convicted under section 396 and sentenced to undergo six months' rigorous imprisonment.

Although there was no appearance for the appellant, Crown Counsel quite properly brought to my notice certain authorities which, in his opinion, merited consideration.

I find it difficult to follow the reasoning of the Magistrate for not convicting the appellant under section 367 on the facts which he accepted.

The machine in question is supposed to fertilize paddy more quickly than nature. The inventor, who is a Municipal engineer, had constructed three such machines. The exhibit P 1 is one of them. It was painted green. P 3, P 4 and P 5 have all been identified as being parts of the machine P 1. At the material date P I was in use at the Jawatte Experimental Station. In spite of the presence of the watcher Pabilis Gomis a thief or thieves succeeded in stealing the machine P 1 on the night of October 22, 1946. The loss was discovered and the watcher reported the loss to his superior officer.

On October 26, i.e., four days after the theft, on information received the machine P 1 was found in the shop of one Jainul Abdeen at Skinner's Road South. He is a dealer in scrap metal. Abdeen at once produced

the receipt P 6. His evidence is that on October 26 the appellant and another man sold him P 1 for Rs. 25.00. Abdeen offered to point out the vendors. He was taken to Thimbirigasyaya Road junction and there pointed out the appellant who was in a motor car. Manatunga has proved that the car is his and he had given it to the appellant for hiring. Attached to the engine of that car were the exhibits P 3 and P 4 which are parts of the machine P 1. The Government Analyst proved that the paint on P 3 and P 4 are the same as that on P 1.

The prosecution, therefore, has established that this appellant on October 26, was in possession of the recently stolen machine P 1, and in the absence of a reasonable explanation from him, the Court would be justified not only in inferring that he was in possession of stolen property, but also that he was the actual thief.

The evidence of the appellant is that an unknown man hired his car and put P 1 into it. That unknown man sold him the coil P 4 for Rs. 5.00 and the machine was sold to Abdeen. He admitted that P 3 was affixed to his car, but he does not explain how P 3 came into his possession. The evidence of Abdeen, however, is that this appellant and the other man both spoke to him in regard to this sale, and it was this appellant who said " Buy this, mudalali. If you turn this, it acts like a dynamo". It

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