Luka & Ors. Crim. App. 248-D-71; 13/10/71; Onyiuke J.

 

Luka & Ors. Crim. App. 248-D-71; 13/10/71; Onyiuke J.

The three appellants were charged with two counts of burglary and stealing c/ss 294 and 265 of the Penal Code. The first appellant was convicted on both counts but the second and third appellants were convicted of receiving stolen property c/s 311 of the Penal Code. The facts as accepted by the trial magistrate were to the effect that the complainant’s house was burgled on the night of 6^th October, 1968 and various articles including a Philips transistor radio were stolen. The radio was found two years later in the possession of the firs appellant who when questioned by the police denied any knowledge of it. The first appellant however passed on the radio to the third appellant who in turn passed it to the second appellant. In convicting the first appellant, the trial magistrate applied the doctrine of recent possession.

            Held: (1) “A period of two years is certainly too long in the circumstances to apply the doctrine of recent possession. A transistor radio is an article of common

use and it will be quite wrong to apply the doctrine to such a case after so long a time. The radio could easily have passed many hands during that period. It would be unreasonable therefore to presume that the 1^st appellant was the burglar from the solitary fact of possession two years after the event ………. I have now to consider whether he could be convicted of receiving stolen property under section 311 of the Penal Code. Since the doctrine of recent possession does not apply to this case for reasons already given, no presumption of guilty knowledge can arise from the fact of possession. There must be some proof or evidence, apart from the fact of possession, of guilty knowledge. I think the fact that the first appellant denied knowledge of the radio and actively sought to conceal it from the police showed guilty knowledge and will accordingly alter the finding to one of retaining stolen property knowing it to be stolen or feloniously obtained c/s 311 of the Penal Code. It has been held in Republic vs. Mohamed Naweka 1964 E. A. 353 that where the property received was stolen in the commission of burglary, the offence under section 311 of the Penal Code becomes a scheduled offence irrespective of whether the receiver knew it to have been obtained as a result of burglary or not.” (2) “I now turn to the 2^nd and 3^rd appellants. All that the 2^nd appellant did was to keep the radio at the request of the 3^rd appellant. There was no evidence that he received or retired the radio with any guilty knowledge his involvement in the transaction was minimal; according to him he received the radio from the 3^rd appellant for safe custody to avoid it being damaged by his children. There was also no evidence that the 3^rd appellant had guilty knowledge. His participation was no greater and not less innocent than that of P. W. 3 who carried the radio to him from the 1^st appellant for safe custody.” (3) 1^st appellant sentenced for substituted offence.