Saudi Mkuyu v. R. Crim. App. 649-M-70; 16/11/71; El-Kindy, J

Saudi Mkuyu v. R. Crim. App. 649-M-70; 16/11/71; El-Kindy, J

The appellant was convicted of theft c/s 265 of the Penal Code. He was tried together with 3 other accused persons on charges of housebreaking and theft in respect of a radio. The evidence on which the appellant was convicted was largely that of his co-accused. The appellant was acquitted on the house-breaking charge on the ground that “nobody saw the appellant break into the house of the complainant.”

            Held: (1) “Evidence on accomplices is admissible in law, and a conviction is necessarily bad it proceeds from the uncorroborated evidence of an accomplice (See section 142 of Evidence Act, 1967), but in practice corroboration is looked for because an accomplice is likely to swear falsely to shift the blame from himself …… Each accused shifted the blame on to the other accused and the majority of them tended to shift if on the appellant. This evidence should have put the learned trial magistrate on his guard, and had he properly directed himself he would not have failed to realize that it was not the sort of case where after believing accomplices, he could act on such evidence without corroboration. In the circumstances, it cannot be said that there was any material corroboration of the allegation of the accomplices, circumstantial or otherwise.” (2) (obiter) “If the evidence had been corroborated the learned magistrate would be entitled to hold that the appellant was in possession of the stolen radio 2^1/₂ hours after the breaking … the learned magistrate refused to convict the appellant on the count of house-breaking because nobody saw the appellant break into the house of the complainant. With respect, this was a serious misdirection as it tended to show that he was unaware of the doctrine of recent possession. Where an accused is found in possession of stolen property shortly after the commission of the offence of house-breaking, it can be presumed that in the absence of a probable explanation, he came into possession of it through house-breaking, it can be presumed that in the absence of a probable explanation, he came into possession of it through house-breaking and stealing or receiving it knowing it to have been stolen or unlawfully obtained.” The conviction was quashed and the sentence set aside.