Alli s/o Ramadhani v. R. Crim. App. 352-D-68; Georges, C. J.

Alli s/o Ramadhani v. R. Crim. App. 352-D-68; Georges, C. J.

Accused was convicted of retaining stolen property contrary to s. 311(1) of the Penal Code. He had at first been charged with being in possession of property suspected to have been stolen, contrary to s. 312 of the

Penal Code, but this charge was altered. Accused had been found in possession of a number of bicycle parts, some of which were usable. The serial numbers on a few of them appeared to have been erased. There was no evidence that the property was concealed. The accused ’s explanation was that he was a bicycle repairer and that various customers would leave parts with him after repairs had been effected. There was no evidence that accused was not a bicycle repairer.

            Held: Conviction quashed. (1) Accused clearly could not have been convicted under s. 312, as originally charged. The pre-requisites for a conviction under this section are; (a) that the accused was detained in exercise of the powers under s. 24 of the Criminal Procedure Code; (b) that he was detained while in the course of a journey, whether or not in a street, in private land or in a building; (c) that he had in his possession, when detained, a particular thing; (d)that the thing might reasonably be suspected to have been stolen or unlawfully obtained, from its nature or from the circumstances; (e) that the accused refused to give an account to the court of how he came by the thing, or gave an account which was so improbable as to be unreasonable or which was rebutted by the prosecution (Kiondo Hamisi v. R., (1963) E.A. 209). But there was no evidence that either pre-requisites (a) or (b) were satisfied here. Therefore accused could not have been convicted under s. 312. (2) Accused was wrongly convicted under s. 311(1). “Whereas under section 312 all that needs to be done is to lead evidence to show that there was a reasonable suspicion that the property was stolen, under section 311(1) there must be satisfactory evidence that the property was in fact stolen or unlawfully obtained and that the appellant knew or had reason to believe that this was the case. This does not necessarily mean that the owner of the property should be identified , or that there should be direct evidence of theft.” The circumstances under which an accused received or possessed the goods may prove that they were stolen and that the accused knew this. (Idi s/o Waziri v. R., (1961) E. A. 146). However here, the evidence was not sufficient to establish the theft of the goods.