Petro Samson v. R., (PC) Crim. App. 789-M-69, 7/1/70, Seaton J.

Petro Samson v. R., (PC) Crim. App. 789-M-69, 7/1/70, Seaton J.

The appellant was convicted of burglary and theft. The prosecution witnesses testified that the appellant entered the complainant’s room through an opening between the top of the wall and the roof and stolen therefrom a bundle of clothes. As to the first count, which related to burglary, the conviction was against the personal view of the Primary Court Magistrate. He was of the view that no offence had been committed but felt constrained to convict because of the majority view of his two assessors and the provisions of s. 8(2) of Act No. 18 of 1969. Why this, the owner of the house knows. I am satisfied that the accused’s climbing of the wall and entering the room cannot be said as ‘breaking’. For the above reasons, I am personally convinced to find that the accused is not guilty on the first count and I do not see the reason why was he charged with burglary.”

            Held: “The essence of the matter, therefore, is whether there can be said to be a “breaking” when the thief gains access by an opening such as was left between the inner wall and the roof over the complainant’s room. Under the Indian Penal Code of 1860, s. 445, this would not be a matter for doubt because breaking includes entering through any passage not intended for human entrance. In English law, it is clear that if a person deliberately leaves an opening in his house to admit air or light, for example through a door or window, and a thief enters, no burglary is committed. It is also clear that if a person’s house has a chimney and a thief enters through this aperture, it is a burglary. The reason in the latter case is that ‘it is as much closed as the nature of things will permit.” So says Archbold, 35^th ed., 1800-1802 and Russell, 11^th Ed., 914-916. However, in connection with gaining entry by overleaping a wall, Russell seems to rule out burglary (at 917). By definition, s. 293 of the Penal Code also seems to rule it out unless an aperture is left open “for any necessary purpose ……” the present appeal seemed important because of the prevalence in this country of houses having rooms without ceiling boards and with apertures between the inner walls and roofs of corrugated iron sheets….. The Senior State Attorney …. Pointed out that there was no evidence why the opening in the complainant’s house was left; it may have owed to lack of funds to complete the wall. Hence it could not be said with certain that the opening was “for a necessary purpose” and learned Senior State Attorney declined to support the conviction for burglary. With respect, I share the view that in law no burglary was committed. Therefore I quash the conviction and substitute one under s. 295 of the Penal Code for entering dwelling house with intent to commit a felony.”