Mrisho v. R. Crim. App. 318-D-71; 29/12/71; Biron J.

Mrisho v. R. Crim. App. 318-D-71; 29/12/71; Biron J.

The appellant, a shopkeeper, was charged with and convicted of stealing (c/ss 269(c) and 265 of the P.C.) 187 corrugated iron sheets, the property of Messrs. Rajpar Shipping Corporation Ltd. He was sentenced to imprisonment for 9 months. He appealed from the conviction and sentence. His co-accused was acquitted of stealing but was convicted of being an accessory after the fact and put on probation for 12 months. He did not appeal. The established facts were that a total of 187 sheets were stolen from outside the go down of the Corporation, where they were laying awaiting shipment to Mtwara. The top sheet of each bundle was marked with the description of the addressee. Sometime after the incident a police party went to the appellant’s house

Together with the appellant and found the appellant’s co-accused in the process of loading on to a vehicle some corrugated iron sheets. After a search of the appellant’s house, and including the sheets already loaded, there were found a total of fifty-five corrugated iron sheets. Two of these sheets bore the descriptions of the addressees. The sheets were all subsequently identified by several witnesses including employees of the Corporation. The appellant claimed that he bought the sheets from a man who he knew only by sight. On the basis of his conflicting statements to the police, after being cautioned, and in court, the trial magistrate observed that the first were made “immediately after the arrest of the accused persons and when the memories of the incidents were still fresh”. But he concluded that “there could only be one inference to be drawn and that is that the accused persons are incapable of telling the truth”. It was disclosed to the appellate court that the appellant was, previously to this trial, charged with the offence of receiving the sheets but the charge was withdrawn by the prosecution and that the evidence of the driver of the vehicle which was material, was not taken by the trial magistrate. The judge adjourned the appellate proceedings and directed that the trial court should call the driver, Hassan Halfani, and record his evidence to the appeal court. The trial court later informed the appeal court that the driver could not be traced.

            Held: (1)”There is [a] file which discloses that the appellant was originally charged in connection with these corrugated iron sheets, the subject matter of this instant case, with receiving fifty-five corrugated iron sheets knowing or having reason to believe the same to have been feloniously obtained. After one witness had given evidence the prosecution applied to withdraw the charge, and it is not irrelevant to note that defence counsel submitted that the charge should be withdrawn under section 200 of the Criminal Procedure Code. Had the court acceded to that request the appellant would have been acquitted and these instant proceedings could not have been brought. However the court, apparently on the application of the prosecution discharged the appellant under section 86 of the Criminal Procedure Code which permits the appellant being charged with the same offence, as indeed he was.” (2) “At the resumed hearing of this appeal learned counsel for the appellant submitted that the Court should draw an adverse inference from the failure of the prosecution to call the driver Hassan Halfani. Section 122 of the Evidence Act 1967 reads: “The court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. This section corresponds except that the word ‘infer’ is substituted for the word ‘presume’ with section 114 of the Indian Evidence Act which it has repealed and re-enacted. Woodroffe on the Indian Evidence Act setting out the illustrations to section 114 gives at illustration (g) the following: that evidence which could be, and is

Not, produced would, if produced, be unfavorable to the person who withholds it’ As conceded by learned State Attorney, the court could and I think should, presume in the appellant’s favour that if the driver Hassan Halfani had been called, he would have given evidence that he brought corrugated iron sheets to the appellant’s shop….And I propose to consider the case against the appellant on such footing.” (3) “[The trial magistrate] stated that the statements made by the appellant and his co-accused to the police were made, and I make no apology for repeating what he said: ‘when the memories of the incidents were still fresh’, and …. It seems odd that the magistrate, who would appear to be accepting these statements as statements of the true facts, should nevertheless have convicted the appellant of stealing one hundred and eighty seven corrugated iron sheets, as charged. Like the learned magistrate I consider that the appellant’s cautioned statement more nearly reflects the truth than does his testimony in court. Apart from the fact that these statements contradict each other, if the cautioned statement is accepted, it establishes that the appellant bought from comparative strangers fifty-five iron sheets at Shs. 3/- a sheet, less than a third of the price he gave in court, which probably is their real value, and he obtained no receipt.” (4) “It has been established beyond any peradventure that these corrugated iron sheets within a short period of their being stolen were found in the appellant’s possession. On the application of the doctrine of recent possession the court may presume, in the absence of a reasonable explanation of innocent possession that these corrugated iron sheets were unlawfully obtained by the appellant. The appellant has given two explanations, one in his evidence in court and the other in his cautioned statement. As already remarked, apart from being contradictory, the first, that is in his cautioned statement which is much more likely to be true, does not raise any doubt as to the appellant having obtained the corrugated iron sheets unlawfully. The magistrate found that he had stolen them, but, as I think sufficiently demonstrated, the evidence would point, as agreed to by learned State Attorney, to the appellant having received the corrugated iron sheets found in his possession knowing them or having reason to believe that they were unlawfully obtained.” (5)”Accordingly I quash the conviction for stealing one hundred and eighty seven corrugated iron sheets and substitute therefore a conviction for receiving fifty-five corrugated iron sheets knowing or having reason to believe that they had been feloniously obtained, contrary to section 311(1) of the Penal Code, which as noted, was the charge originally brought against the appellant.” (6) “It is now necessary to deal with the case of the appellant’s co-accused although he has not appealed, and I therefore propose to deal with his conviction in the Court’s jurisdiction in revision. As noted, he was acquitted on the substantive charge of stealing one hundred and eighty seven corrugated iron sheets but convicted of being an accessory after the fact and he was placed on probation. It is well established law that a person charged with the principal offence cannot be convicted on such charge of being an accessory after the fact to the principal offence. Such conviction will lie only if he has been specifically charged being an accessory after the fact contrary to section 387 of the Penal Code. It is sufficient to cite one authority to the point and that is the case of Murui s/o Wamai and 5 others v. R. reported at XX11 E.A.C.A. 417. The conviction is quashed, and the order placing the appellant’s co-accused on probation is formally set aside.”