Kiyunga v. R. (PC) Crim. App. 80-M-71; 5/10/71; Kisanga Ag. J.

 

Kiyunga v. R. (PC) Crim. App. 80-M-71; 5/10/71; Kisanga Ag. J.

The appellant was convicted of receiving stolen property c/s 311 (1) of the Penal Code and sentenced to 2 years imprisonment and 24 strokes of corporal punishment. The appellant sold a case of Coca Cola to the complainant. After buying the coca cola she kept the case of empties together with other cases in he restore-room. The storeroom was broken into and a number of cases stolen. They were found in the possession of the appellant who said that he had bought them from one Jafari, a 13 year old boy. He admitted that he had long been buying bottles secretly from Jafari; that he was suspicious of Jafari’s ability to get empty bottles and that he had bought the coca cola bottles from Jafari at 9o’clock at night. The appellant was a first offender and the value of the goods found in his possession was 70/=.

Held: (1) “To my mind all the circumstances are consistent. With the view that the appellant knew, or at leas had reason to believe, that the bottles in question were stolen from the complainant.” (2) “In the case Shah Ali v. R. (1968) H. C. D. 474, it was held that where the offender neither knew nor had reason to believe that the goods were taken in the commission of a scheduled offence, this constituted special circumstances. There was no evidence to show that the appellant knew or had reason to believe that the bottles were taken in the commission of this offence ………. This, coupled with the fact that the appellant was a first offender and the amount involved did not exceed 100/= would entitle the appellant to a reduction of the minimum sentence.” (3) Sentence set aside and at term of imprisonment such as will result in the immediate release of the appellant from prison, substituted.