1960 Present: Sinnetamby, J., and L. B. de Silva, J.

THE QUEEN v. D. L. ALBERT

S.C. 117/60-D. C. (Criminal) Panadura, 295/25103

Evidence Ordinance-Section 27 (1)-Meaning and effect of the words " as related distinctly to the fact thereby discovered "-Penal Code ss. 369, 304, 443.

         The accused-appellant was convicted of house-breaking by night and retention of stolen property, offences under sections 443 and 394 of the Penal Code. The stolen goods were discovered by a Police Inspector in consequence of a statement made to him by the accused when he was in custody. In his evidence-in-chief at the trial the Inspector answered in the affirmative the question: " Did the accused tell you that the articles that were subsequently recovered by you were in his custody and thereafter take you and point them out to you ? ".

      Held, that the evidence of the statement of the accused to the police officer was not admissible under section 27 (1) of the Evidence Ordinance. The words " the property is in my custody " in the statement of the accused were not directly relevant to the discovery of the stolen goods nor could they be said to relate distinctly to their discovery within the meaning of section 27 (1) of the Evidence Ordinance.

   APPEAL from a judgment of the District Court, Panadura.

                      Colvin R. de Silva, with Y. L. M. Mansoor, for the Accused-Appellant.

                     S. S Wijesinha, Crown Counsel, for the Crown.

Cur. adv. vult.

November 14,1960. L. B. DE SILVA, J.-

           The Accused-Appellant was indicted on three counts of house-breaking by night, theft of articles and cash worth Rs. 4803'75 cts. and dishonestly retaining stolen property worth Rs. 160.50 cts. belonging to Mrs. S. P. Suripperuma, punishable under sections 443, 369 and 394 of the Penal Code respectively.

            After trial the learned District Judge convicted the Appellant on the 1st and 3rd counts but acquitted him on the 2nd count of committing theft.

            The house of Mrs. Suripperuma was burgled on the night of 10.3.59 and cash,  jewellery and other articles wore stolen from her house. The burglars were not identified by the inmates of the house.

            On information received by the Police, Inspector Mendis searched the premises of the Accused about 3.40 a.m. on 16/3/59. On a statement made by him, the Inspector discovered three bangles, one ear stud and

some coins valued at Rs. 160-50 in a cart shed in the compound of the accused and some distance away from his kitchen. They were in a tin which was kept on a plank about 6 feet from the ground.

            The bangles and the ear stud (one) were identified by Mrs. Suripperuma as part of her stolen property. These articles were not included in the first list of stolen property (P1) given by her to the Police but had been included in a second list furnished by her on the same day as the first list.

     In the course of his evidence, the Inspector was asked-

               Q. Did the Accused tell you that the articles that were subsequently recovered by you were in his custody and thereafter take you and point them out to you ?

              Counsel for the defence objected to this question as inadmissible but the learned Judge allowed the evidence under section 27 of the Evidence Ordinance. He relied on the case repotted in 51 N. L. R. at p. 529.

               The Inspector answered " Yes " to the question.

    The conviction of the accused was based solely on the finding that part of the stolen property was found in the possession of the accused soon after the theft and the presumption drawn by the Judge under section 114 (a) of the Evidence Ordinance.

     In his judgment the learned District Judge has made no reference to the confession by the Accused that the stolen property was in his custody. He has stated in the judgment "Within five days of this occurrence these articl