Chacha v. R. Crim. App. 247-M-70; 10/7/70; Mnzavas, Ag. J.

Chacha v. R. Crim. App. 247-M-70; 10/7/70; Mnzavas, Ag. J.

The accused was charged with and convicted of cattle theft c/ss 265 and 268 of the Penal Code and sentenced to 3 years imprisonment. The complainant’s 16 head of cattle were stolen from his kraal. The appellant was one of the suspects. His kraal was inspected and one cattle was identified among his herd as one of the sixteen cattle stolen from the complainant. In his defence he admitted that the cattle was not his property and that he did not know how it came to be in his boma. This was as stated above 5 months after the theft. In his judgment the learned Resident Magistrate said – “The accused has not explained as to how he came into possession of the head of cattle which was identified as belonging to Soka, the complainant. This fact of possession would certainly be within the special knowledge of the accused who is required to give some explanation as to how he came into possession of the cow belonging to Soka. Of course the accused not been persuaded by accused’s denial that he is telling the truth”.

            Held: (1) “From the above it is evident that the learned resident magistrate convicted the appellant because, as he said in his judgment, he was not persuaded by accused’s denial that he did not steal the head of cattle. This was clearly misdirection as to the burden of proof in a criminal charge. In a criminal case the magistrate does not have to accept the word of the accused as truthful before he acquits him.” “The learned magistrate did not have to be persuaded by accused’s denial that he did not steal the cattle before he found him not guilty of the offence. If he entertained some doubt the doubt should have been resolved in favour of the accused. As it is not clear that the magistrate would have come to the same conclusion had he not misdirected himself as to the burden of proof the conviction cannot be supported”. (2) “As to the alternative verdict of receiving suggested by the State Attorney it is in evidence that the appellant who admitted that the head of cattle was not his property, told the court that he did not know how the cattle came to be in his kraal. This explanation cannot, by any standards, be said to be a reasonable explanation taking into account the fact that the cattle had been in the accused’s kraal. This explanation cannot, by any standards, be said to be a reasonable explanation taking into account the fact that the cattle had been in the accused’s kraal for about 5 months. The charge of cattle theft is under section 187 of the Criminal Procedure Code, reduced to receiving stolen property c/s 311 of the Penal Code”. (3) “The conviction and sentence for cattle theft is therefore set aside. So is the order for compensation. The appellant, a first offender is to suffer 12 months imprisonment only”.