Jumanne Mohamed v. R., (PC) Crim. App. 181-D-69, 9/1/70, Biron J.

Jumanne Mohamed v. R., (PC) Crim. App. 181-D-69, 9/1/70, Biron J.

The appellant was convicted in Primary Court of burglary and stealing. He appealed to the district Court and his appeal was allowed to the extent that the convictions were set aside and there was substituted therefore a convictions were set aside and there was substituted therefore a conviction for receiving a shirt, one of the items stolen when the house was burgled. The original charge was that he burgled the house  of the complainant on the night of the 7^th of March 1969 and stole therefrom two pairs of trousers, one pair of shorts, six shirts, one bag, one table clock, and Shs. 70/- in cash, to a total value of Shs. 604/-. The complainant testified that about six months later he saw the appellant wearing a shirt, which he identified as his and one of those stolen when his house was burgled. He challenged the appellant, who claimed the shirt as his. The complainant contacted the police and the appellant was arrested and charged. He stated that the shirt was bought at an auction. In court he said that it was bought by his

‘brother’. In allowing the appeal against the convictions as found by the primary court, the district court magistrate remarked that a period of six months was too long for the court to convict the appellant of having stolen the shirt and having burgled the house as well, but not too long to convict of receiving. On further appeal, Mr. Tarimo, the appellant’s advocate submitted that the period of six months which had elapsed between the shirt having been stolen and its having been found in the appellant’s possession was too long to justify the application of the doctrine or recent possession.

            Held: “In his argument before the District Court Mr. Tarimo cited the case of Abdullah Ibrahim v. R. (1960) E.A. 43, wherefrom it is sufficient to quote the headnote, which reads: (in part): “possession of an article of common use such as a tyre pump seven months after the burglary could not raise the presumption that the appellant was guilty of burglary and stealing ….” It is notorious, in fact the Court cannot but take judicial notice, that an article like a shirt can pass readily and freely from hand to hand, and very frequently does so. As the magistrate very properly directed himself in his judgment, quoting from the case cited (at page 45): “As to what time is near enough to be recent, no general rule can be given, for the period within which the presumption can operate will vary according to the nature of the article stolen. Three months has been held sufficiently recent for a motor car, and four months for a debenture bond. But for such articles as pass from hand to hand readily, two months would be a long time.” In this connection it is extremely pertinent to refer to another case of this Court, Gaspare s/o Jovin V. R., [1968 H.C.D. n. 483]. In that case it was held by Bramble J., quoting from the report in the Digest, that: - ….. “Four months is too long a period to be considered ‘recent’ in order to raise the presumption that the accused was the thief or the knowing receiver. ‘There is no general rule as to what time is close enough …. It is generally accepted that a period of two months …. Will be too long to raise the presumption in the case of articles that pass readily from hand to hand.’ ……” that case concerned a watch, and I think it will not be disputed that a shirt passed more readily and more frequently from hand to hand than does watch …. Although, as remarked in the two cases cited, no general rule can be laid down as to what period of time is sufficiently recent for the application of the doctrine of recent possession, it cannot, I think, be disputed that in the case of an ordinary shirt six months is rather, if not too, long for the doctrine to be applied, and, as noted, it would appear that the learned magistrate has misdirected himself on this factor, as, before the doctrine of recent possession can be applied, throwing the onus on an accused to give an explanation of innocent possession which may reasonably be true, the court must find that the possession was in fact sufficiently recent to the theft …. In all the circumstances, apart from the question of the identification of the shirt, which as noted, was the only article found in the appellant’s possession out of the very many items stolen…… as the period between the shirt having been stolen and its being found in the appellant’s possession …. Was so long, it would, to my mind, be most unsafe to sustain the conviction.” Appeal allowed.