[1955] EACA 320

## . COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), MAHON, J. (Tanganyika), and Holmes, J. (Kenya)

FATMA $D/O$ JIVAN MITHA, Appellant (Original Accused) $\mathbf{1}$

## REGINAM, Respondent Criminal Appeal No. 1 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Lowe, J.)

Retaining stolen property—Essence of offence—Penal Code, section 311 (1).

The appellant was convicted of retaining stolen property contrary to section 311 $(1)$ Penal Code.

The case against her rested almost entirely on the fact that when interviewed at the police station and shown a watch, she claimed it as her property.

There was no evidence as to how or in what circumstances she had become possessed of the watch or when she might have known that it was stolen property, or that she, thereafter, retained possession of it.

Held (20-1-55).-To establish the offence of a dishonest retention of stolen property in contradistinction to the offence of receiving, the prosecution must prove a change in the mental element of possession, from an honest to a dishonest condition of the mind in relation to the thing possessed.

Appeal allowed. Conviction and sentence set aside.

Master for appellant.

. Ballard for respondent.

[Editorial Note.—This decision is commented upon by the Court in Harji Kuverji Patel v. R. post, page 536.]

JUDGMENT (read by Nihill (President)).—This is a second appeal from a conviction by a magistrate's court of the offence of retaining stolen property contra section 311 (1) of the Tanganyika Penal Code. The facts of this case are certainly exceptional. The appellant is a young Asian married woman and the Crown case against her rested almost entirely on the fact that when interviewed at the police station and shown a wrist-watch she claimed it as her property. In fact, she said that it was a watch that had been given her by her uncle in 1952. The prosecution had no difficulty in proving that this statement was false. The watch was identified beyond any question as the property of a Mrs. MacLean whose husband had bought it for her in London in December, 1952. The MacLean's house in Dar es Salaam had been burgled in July, 1954, and the watch together with other property stolen.

The short point taken on the appeal is that neither court below found as a fact that the appellant retained this watch in her possession after she had reason to believe that it was stolen property. There is, in truth, no answer to this submission which on the peculiar facts of this case must succeed. In order to establish the offence of a dishonest retention of stolen property in contradistinction to the offence of receiving, the prosecution had to prove a change of animus. Ratanlal in his Law of Crimes puts it thus in his commentary on section 411 of the Indian Penal Code on which section 311 of the Tanganyika Penal Code is based—(14th Edition at p. 1008):—

"To constitute dishonest retention, there must have been a change in the mental element of possession—possession always subsisting *animo et* facto—from an honest to a dishonest condition of the mind in relation to the thing possessed."

The difficulty the prosecution was faced with in this case was that they had no evidence as to how or under what circumstances the appellant became possessed of this watch, and no doubt it was for this reason that the Crown elected to charge her with retaining rather than receiving. What seems to have been overlooked by both courts below is that there was also no evidence as to when the appellant must have known that the watch was stolen property or evidence that thereafter she retaineed possession of it. The convicting magistrate tried to meet this difficulty by relying on the doctrine of constructive possession which he thought could be extended to include the period after the watch came into the possession of the police. The learned Judge in the court below, we think rightly, was not prepared to extend the doctrine of constructive possession so far as that, he thought that it must be held to have ceased once the police had gained possession of the watch. However, if this be right, then there was no retention of the watch after the appellant must have known it was stolen, because by that time the watch was no longer in her possession. Clearly then the offence with which she was charged was not substantiated.

We certainly have no sympathy with this appellant because she undoubtedly made a false statement to the police whereby she sought to reobtain possession of a watch which, to say the least, was probably acquired by her in the first place under suspicious circumstances. Had the prosecution held its hand until evidence of these circumstances was forthcoming, a charge of receiving might, we think, well have been brought home against her. As it is, the offence with which she was charged was not made out and her appeal is entitled to succeed.

We accordingly quash the conviction of retaining and set aside the sentence imposed. The appellant who we understand is in custody, must be liberated forthwith.