Mathuradass Kara v. Republic Court of Appeal Crim. App. 124-D-70; 13/7/70; Spry, V.P., Law and Lutta, J.J.A.

Mathuradass Kara v. Republic Court of Appeal Crim. App. 124-D-70; 13/7/70; Spry, V.P., Law and Lutta, J.J.A.

The appellant was convicted of receiving a tape recorder, knowing the same to have been stolen contrary to section 311(1) of the Penal Code. Two young men who were convicted of stealing the tape recorder stated to a police officer first that they had hidden it somewhere and then that they had sold it and then they led the police to the appellant’s shop where it was found wrapped in a parcel. At their trial, the two young men each denied having led the police to the shop or giving or selling the tape recorder to the appellant. When asked the appellant denied having received a tape recorder and he denied knowledge of what was in the parcel but stated that someone had left he parcel there for collection later. He was convicted and on appeal to the High Court the Chief Justice held that there was evidence on which the magistrate could find that the tape recorder was left at his shop with the knowledge of the appellant because after a preliminary denial, he admitted to the police that someone had left it there.

            Held: (1) “With great respect, this is a misdirection. The appellants “preliminary denial” related to the question whether a tape recorded had been left in his shop, and his subsequent admission, after being shown the tape recorded wrapped in paper, was no more than an admission that someone had left the parcel there. At no time did the appellant admit knowing that the parcel contained a tape recorder.” (2) “We feel that it must be a possibility that the two young men hid the tape recorded in the appellant’s shop, in his absence, so that it would not be found in their possession by the police who were then conducting an intensive search for it. Their subsequent statement that they had sold it to the appellant may well have been a lie. Certainly there is no evidence that any money was found on them. Although there is strong suspicion against the appellant, we are not satisfied that his guilt has been proved beyond reasonable doubt.” (3) (obiter) In considering the nature of the appellant’s possession of the tape-recorded the learned Chief Justice relied, at least to some extent, on the definition of “possession” In  section 5 of the Penal Code. “This was a misdirection. There is direct authority on the point in the judgment of this Court in Shantilal Manibhai Patel v. Reg. (1955) 22 E.A.C.A. 425, a case originating in Kenya, which was not cited to the learned Chief Justice or to us. That case is authority for saying that either exclusive or joint control of the stolen property may be sufficient possession to constitute the offence and in the course of the judgment, read by Briggs, J. A., It was stated that counsel had correctly pointed out that the wide definition of “possession” in the Penal Code does not apply in relation to a charge of receiving stolen property ….. The position in our view is the same in Tanzania.” (4) Appeal allowed.