Mhina Athuman v. R., Crim. App. 3-Tanga -69; 22/1/70; Biron, J.

Mhina Athuman v. R., Crim. App. 3-Tanga -69; 22/1/70; Biron, J.

The appellant was charged together with a co-accused of cattle theft. The co-accused was convicted as charged and sentenced to three years and twenty-four strokes, while the appellant was convicted of receiving stolen cattle c/s 311(1), Penal Code, and sentenced to three and a half years and twenty four strokes. The facts are that during the night of the 26^th/27^th of July of last year, the cattle boma of the complainants was broken into. Two witnesses testified that on the very next day they saw the appellant’s co-accused leading a bull, which they recognized as that of the complainants. They subsequently learnt from the complainants that two bulls had been stolen. That very same evening that same bull found its way into the cattle boma owned jointly by the appellant hand his father that is, in effect, the stolen bull was in the appellant’s possession, though in joint possession with his father, the very day after it was stolen. The doctrine of recent possession would therefore apply, but it was submitted that the appellant had discharged the burden of proof thrown on him on the application of the doctrine of recent possession.

            Held: (1) “Before I deal with the facts, in view of the submission made by learned counsel for the appellant and the Republic, I consider it necessary to state the attitude I propose to adopt in dealing with this appeal. That is as laid down in Dinkerrai Ramkrishan Pandya v. R. (1957) E.A. 336, wherein the Court of Appeal for Eastern Africa (as it then was) adopted the submission of counsel for the appellant that – and I quote from the judgment at page 337 – “on the first appeal the appellant was entitled to have he appellate court’s own consideration and views of the evidence as a whole and its own decision thereon.” (2) “My view of the doctrine of recent possession, for what it is worth, is that it does not really shift the burden of proof from the prosecution. In my view, as in all criminal cases except where expressly excepted, the burden remains on the prosecution to establish its case beyond reasonable doubt. The doctrine of recent possession merely provides a presumption of fact, that when a person is found in possession of recently stolen property a court may infer, in the absence of an explanation of innocent possession which may reasonably be true, that the said person either stole or received the property knowing it to have been stolen. The court may presume that, but that does not mean that the burden of proof has shifted. The court must still be satisfied beyond reasonable doubt that the prosecution has established that the accused either stole the property in question or received it knowing or having reason to believe that it was stolen, as the case may be.” (3) “The whole crux of the case is the explanation given by the appellant for his possession. 

The explanation he gave was that it was brought to him by his co-accused, from whom he had on previous occasions purchased cattle, and he did not know that the bull was stolen ……..I consider that the evidence establishes the guilt of the appellant beyond reasonable doubt, that it is impossible to accept his explanation of Innocent possession.” (4) “Learned counsel for the appellant, however, has submitted and argued with very great force …… that the magistrate misdirected himself in his judgment: and it must be conceded at once that he has. He says in his judgment:- “Accused’s deliberate failure to inform the police ….. of the presence of Exhibit A in his boma from 28/7/69 to 22/9/69 – a period of two months – is a conclusive proof that the accused at the time he received Exhibit A from the first accused he very well knew that it was feloniously obtained or had reason to believe so.” That is a gross misdirection, as the stolen bull had not been in the appellant’s possession for even twenty four hours before it was taken away by the police, after having been identified by the complainants as theirs. Mrs. Chirwa for the respondent republic has submitted that even if the learned magistrate had not misdirected himself so, in view of all the other evidence, on which he has directed him, he would still have come to the same conclusion that he did, and have convicted the appellant. Mr. Singh for the appellant, however, submits that it is impossible, at lowest, to say he would, in view of the language used by him…… I fully appreciate that it is almost a stereotyped expression of appellate tribunals on first appeal to declare that if the magistrate had not misdirected himself as he had, he might not have come to the conclusion he did, and therefore the particular conviction cannot be upheld. I am by no means convinced of the propriety of that approach. Adhering tot eh approach laid down by the Court of Appeal for a first appellate tribunal, does it really matter so very much, or even at all, whether the magistrate misdirected himself or not, if in the view of the appellate tribunal the evidence establishes the guilt of an accused? If an appellant is on first appeal ‘entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon’, surely the prosecution is likewise so entitled, particularly so as in this country the prosecution now has an equal right of appeal from an acquittal by a magistrate as has a convicted person from his conviction. So why should the direction or misdirection of a magistrate, unless it affects the evaluation of he evidence adduced, affect the case one way or the other? But even assuming that this time-hallowed phrase is proper and correct in law as submitted by Mrs. Chirwa, even if the magistrate had not misdirected himself he would have come to the same conclusion he did. In any event, I am perfectly satisfied that on the evidence as a whole this misdirection, which Mr. Singh rather ingeniously attributes to the date the charge sheet was signed, has occasioned no failure of justice. In so far as the conviction is concerned the appeal is dismissed.” (5) “In sentencing the appellant and his co-accused, the magistrate said:- “In so far as the first accused [the appellant’s co-accused, the appellant being he second accused] is concerned, it is apparent that he would only steal cattle if he finds a person to whom he can  dispose of it. Since he found the second accused a suitable receiver, it is the duty of the court to take a [more] serious view on the receiver than the thief.” The learned magistrate’s direction is only half true – if that – particularly in the case of cattle. Whilst it can be true that a professional receiver should on occasion be dealt with more severely than the thief, there is not the slightest indication on the record that the appellant is a professional receiver. According to the record he appeared in court as a first offender ….. In all the circumstances of this case, I consider the minimum sentenced laid Down by the Act would be quite sufficient to meet the justice of the case. The sentence imposed on the appellant is accordingly set aside and thee is substituted therefore a sentence of imprisonment for two years and the statutory award of twenty four strokes corporal punishment, which is mandatory.”