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- —'L.M - XUH j<? t ?ALti1 A AT ARV stA IN 'i A i1ijj** J4cTic OUL1M AP1AL. NO. 264 0 1911 1519 01 197& C, 0LflOIN1 e!NJ$ , L 3a 10, D !M1CT CWAT OY ULILNJAG DIVIVICk, AT K(fl.I Before 3.. U. Mananoho l Rasidont Magiotret. X!N CILLU.I .. .. APP*I.tAIT'/ACCU4D varous .. . 04i0i 9tore breaking aM Ztonling cotrtr.zy to esotion 296 x(i) of the Penal Codo. J U 0 NT gh'IKXXA # A0. J. The sppi11awt was c onvioted of xz= utore- breakin; and stealizi6t and esnionoed to two yesro and tw*nty four otrokee itndor the Ninimum 3an tenocs Ant. He is now appealing ajain5t conviction and aen once. It wo aotaulished at the trial that the a pellant vao soon by un eyo-witan drop,)ine rrom inside the store scan eftor some 93 esoka- ceuab1y gwiny begs - had been dropped outside from an aperture through whc1i the apiellent clised out. Yrom this evidence the trial court int.rr,4 that it was the appeilent who threw the bau from the ntore for the purpoio of stealing thou. Kin identity was not at issue. There was no dispute that the bags belonged to his employers /3 Kdur&not Estate at Olmolog. This eppani was edaitted boosuue there wan some doubt an to whüther entry through a Vor5*i3szt eprturo constituted "bresktng.' In his judVwni q the learnsd trial magitrate referred to the aperture through which the •ppl1ant use aeon leaving the store an "an openthC between the 'wall and the r.of." This finding by the trial court is in accordance with the recorded evidonoo. The appellbnt cannot, however be hold to have broken into the otora, following Seator4 J.'o ruling in PJJ SAM604 vft 170 HOD 35 tibteb I uhail quote in extenso because the fact& of the case cose out so clearly in the rulingi- (it) be said to be a breaking when the thief gathu entry by acceso by an opening such as was left etween the inner vail and the rf over the oospiñinante room? Under the Indian )onal dade ....... t1s would ot be a aaite' for doubt because /br.aking includes entering throub any passage not tntended for / human entaxzc. ...In.g1ich law .............. if' a - ereon deliberately / leavas an opening in his houue to admit air or light, for exaip10 c,"/ ihx'ouh ox doer ox' a window and u thief entere, no burgL.x'y in committed ......... If a houno has a chimney and s thief enters through This aperture, it is a burglary. The riason for the lattar case is that it is ac muob closed so the nature of things will permit ............... Hosver, in ooneoiion with gaining ntey by cvcrisapn a wall, Russel seems to role out burglary. By definition Section 293 of the Penal Code (Cap. 16) also eeeme to rule it out unless an aperture it loft open for any necessary purpose ............. There was no ,vitance why the opening in the complainant's house was left open. Dinco ii coul4 not be said wit., certainty tat the opening was for a necessary purpose. (ther. fore) in low no bargi ry was committed." Mr. Justice Coaton l e ruling seems to covr the 1re*ent cane very well and I would follow it with tufl approval. The point about untry through the obisney which neess to have misled the Learned, trial eagiatrete is well- covered by this authority. I would only point out that our Penal Cods ... . ... 4L / 4 - (Cp. 16) it :rair in @triing llbroak4a, r or p31i bve a (laty to tiven c build wit out latsviog ptrtuz' }reu thioh itna1n g*i etry ** to rtr havoc to tbeiz r rty eror titc and 1tb. I *otild f,r *:.i ziou let g lw ,'eth i.z it 2ithøUt cvtkiAg to Imitate ttu kiwi Pcnj toe juted by N*'. t&ee to IfL I rim sroe b t2 .pztt i t ö lato NVA. Jwttce Rm1yn in JD h4t tFLt *p)e to ragard an tu* left pe wa, it wcz an *licit iwitritiøi to itr or wt itst an a OIL ttat1on iot PrObIsibing tat c i1bU t of te Pr6micen, ccrned* in M 174 ooe*e to 1*ve •*n oeingg iu th* clL or i,00r Of jg a cgteie(t J1n4hw, Js srit tk eonaque- nt entry png not a 10 ThIIOs tbe Abovo I Ara 1*fi With eoept to OIL= the & asob the ovi.*t tor , rbrekig :fld ThO uOtt Moub, t* Oftsaidor it whother the tted Zhve In ample OvidArce to mkipport rv&ttou Thr eimple tfl tu view ofth t41 awt' ni1ng that tee uu uporiaon. &ch b oi i 11owa iner a cctjo& 181 Of the OrIMInel Pe Code bcaae ai,re br kinj $J it It lo coupled 4tI eU &ir4ingI tlte tthe i con ttt of siQplo tPtfi undur section, 25 of t e Pni1 Itin 4e01ojon of this *oa1 01i tho poiit Whotber BC4u1eI ofio aflahr an breAkAng and Vxtdalin j3 Qfl be viubatituted by Saothor to bouie under 526, 1 hait e4en b.1d t!tt to lwf1 i',1 ponit1a to eum itte e. fjohodal.4id eo€ IJitI nn ordinary onto I • doing no in tgcj cn With not Inoolisiflorable hlit. X world gjo of untt AaAthls k UM r1t t}t tho eUeit ouI*t be rc zthwith tai1*iu 1 has f orrvested hia eittanior. - 1KI) Ar JOM sn AM