James Malawi v. R., Crim. App. 28-M-69, 11/3/69, Seaton J.

James Malawi v. R., Crim. App. 28-M-69, 11/3/69, Seaton J.

            The appellant was convicted of knowingly receiving stolen property under section 311(1) of the Penal Code. The evidence for the prosecution showed that the complainant’s house was burgled on the night of 9^th June, 1968. A number of articles including a Phillips radio and cash were stolen. On 20^th October, 1968, upon information received, two police constables went to the appellant’s house armed with a search warrant. They found the appellant seated outside his house. When informed that they wished to search his house for a Phillips radio, the appellant denied he had any such radio. While the police were proceeding to search outside the appellant’s house, his wife came out of the house with a radio. After a by o means unequal struggle, the two police officers managed to wrest the radio from the appellant’s wife and arrest her. During the struggle, the wife shouted that her Shs. 400/- and the radio were going to be lost and she did not know the radio was stolen. The appellant disappeared but was arrested the next day at a bus stop.

Held: “There was no doubt of the ownership of the radio as the complainant identified it by its serial number and produced his receipt of sale and broadcasting licence. The appellant explained he bought the radio from D.W.1 for Shs. 400/-. The main question was whether the doctrine of recent possession applied and whether either presumption, - that is to say, that the appellant was the thief or a guilty receiver – could properly be applied. The learned magistrate decided to invoke the doctrine; he was impressed by the appellant’s courage in calling as his defence witnesses the alleged seller of the radio to him and a witness to the sale. Both of these defence witnesses were in remand prison with the appellant and, perhaps understandably, vigorously dissociated themselves from any transaction involving the radio. The appellant’s conduct in denying possession of a radio, in refusing co-operation to the search party and in taking flight when the radio was produced by his wife was considered by the trial court as justifying the finding that he knew the radio was stolen or feloniously obtained. Although 4¹/₂ months might not be considered too lengthy a period in which to invoke the doctrine of recent possession when articles of rarity or great value are involved, learned State Attorney was not prepared to support the application of the doctrine in the present case. He pointed out that a radio is a relatively common possession in present –day households in Tanzania. He also submitted that the appellant’s explanation that he had bough the radio for Shs. 400/- could reasonably be true; it was consistent with his wife’s remarks when the radio was seized. As the complainant himself estimated the value of the radio at Shs. 370/-, the purchase of it by the appellant for Shs. 400/- would not indicate knowledge that it was stolen. For these reasons, the learned State Attorney did not support the conviction which, I am of the view that it would be unsafe to uphold. The appeal is accordingly allowed.”