[1955] EACA 359

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HUGH HOLMES, J. (Kenya)

### HARJI KUVERJI PATEL, Appellant (Original Accused) $\mathbf{v}$

# REGINAM, Respondent

### Criminal Appeal No. 1073 of 1954

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

Charge laid as receiving stolen property—Whether conviction for retaining stolen property may be substituted-Ingredients of offence of retaining stolen property—Penal Code, section 311 (1)—Uganda Penal Code, section 298— Kenya Penal Code, section 317 (1).

On first appeal the appellate Judge altered a conviction entered by a magistrate from receiving stolen property under section 311 (1) Penal Code to one of retaining stolen property as he was not satisfied that when the appellant received the property he knew or had reason to believe the same was stolen. The appellant had not been charged with the offence of retaining.

Held (10-8-55).—Whilst, in framing a charge under section 311 (1) of the Penal Code (or section 298 (1) of the Uganda Penal Code, or section 317 (1) of the Kenya Penal Code), it is open to the prosecution to lay the offence as "receiving or retaining" leaving it for<br>the court to decide upon the evidence which limb of the charge has been proved, if the prosecution elects to charge receiving only and fails to prove the essential element that the accused had guilty knowledge at the time he received the stolen property, the accused must be acquitted; he cannot be convicted of retaining.

Per curiam—The proposition in Fatma $d/o$ Jivan Mitha that, to constitute dishonest retention, there must have been a change in the mental element of possession from an honest to a dishonest condition of mind in relation to the thing possessed goes too far. It is safer to construe the words of section 311 (1) aforcsaid in their natural and ordinary sense, i.e. that a person who keeps property knowing it to have been stolen retains it whether or not he had the guilty knowledge at the time of receipt, so that receiving and retaining are not mutually exclusive and a receiver can be guilty of retaining, the converse not, however, holding true where the prosecution elect only to charge the receiving.

Appeal allowed.

Cases referred to: R. v. Saifal (1937) I. L. R. 18 Lah. 227; R. v. Macharia Kichuhi, (1948) 15 E. A. C. A. 53; Jagat Singh v. R., 20 E. A. C. A. 283; Ashabhai and another v. R., E. A. C. A. Cr. Apps. 970/971 of 1954; R. v. Taibali Mo Fatma dyo Jivan Mitha, ante page 370.

### Anjaria for Appellant.

#### Ballard for Respondent.

JUDGMENT (prepared by Worley (Vice-President)).—This is an appeal brought under the provisions of section 325 of the Criminal Procedure Code of Tanganyika from a judgment of the High Court dismissing the appellant's appeal from his conviction in the District Court of Tanga; being a second appeal it lies only on matters of law. The appellant was found guilty in the District Court on two counts of receiving stolen property contrary to section 311 (1) of the Penal Code and was sentenced to imprisonment. The evidence left no doubt at all that the appellant was found in possession of certain stolen motor-car tyres and he did not deny this. The real issues in the first appeal were whether the learned trial magistrate should have accepted the explanation put forward by the appellant and whether there was any evidence to justify the magistrate's inference that at the

time he received the tyres the appellant knew or had reason to believe that they were stolen.

The tyres, which belonged to the Motor Mart & Exchange Ltd., Tanga, were stolen by an employee of that company and, according to the evidence, sold to the appellant at a price which was not unduly low. The appellant in court explained that he bought the tyres from the thief thinking that the thief was obtaining them at a discount in his own name from the company and the evidence adduced showed that the company did permit its employees to buy tyres at $17\frac{1}{2}$ per cent discount. The learned Judge on first appeal thought that the appellant's explanation was not, *ex facie*, unreasonable but he went on to examine the circumstances established by other evidence and correctly directed himself that on a charge of receiving the prosecution must prove not only that the appellant received the stolen property but that when he received it he knew or had reason to believe that it was stolen. He then concluded: —

"After carefully considering the whole evidence, I find myself in some doubt as to whether there was evidence on which the learned trial magistrate could reasonably find that the appellant knew or had reason to believe that the tyres were stolen when he received them, but I am quite satisfied that after the arrest of (the thief) the appellant had very good reasons for believing that the tyres and wheels he had received from (the thief) were stolen if he did not actually know they were stolen.

I therefore alter the finding on both counts from guilty of receiving stolen property to guilty of retaining stolen property."

We thought, and counsel for the Crown/respondent did not contest this, that the learned Judge on first appeal was not entitled in law to alter the conviction from one of receiving to one of retaining stolen property. We therefore allowed the appeal on both counts and quashed the convictions and sentences. We now give our reasons for so doing.

Section 311 (1) of the Tanganyika Penal Code corresponds to section 298 (1) of the Uganda Code and section 317 (1) of the Kenya Code. We have pointed out in Jagat Singh v. Reg. 20 E. A. C. A. 283 and in Criminal Appeals Nos. 970 and 971 of 1954, Ashabhai and another v. The Queen (unreported) that it is open to the prosecution in framing a charge under these sections to lay the offence as "receiving or retaining", and that it is then the duty of the court to decide on the evidence which limb of the charge has been proved. Nevertheless, if, as in the instant case, the prosecution elects to charge receiving only it must, as the learned Judge in the High Court held, prove beyond reasonable doubt that the accused had the guilty knowledge at the time he received the stolen property. On the other hand to establish a charge of retaining it is not necessary to show guilty knowledge in the appellant at the time of receipt; it is sufficient to show the existence of a guilty mind at some time before the discovery and seizure of the stolen goods in the accused's possession. Indeed, in Fatma v. Reg., ante page 370, this Court went so far as to say, quoting from Ratanlal's Law of Crimes, 14th Edition, at p. 1008, that to constitute dishonest retention there must have been a change in the mental element of possession from an honest to a dishonest condition of the mind in relation to the thing possessed. We are inclined to think that this proposition, which was not essential to the decision of that case, goes rather too far. Indeed, the learned editors of Ratanlal in their 17th Edition at p. 1026 have included comments which are inconsistent with the one cited above as where they say "The offence of dishonest retention of property is almost contemporaneous with the offence of dishonestly receiving it. A man who dishonestly receives property, if he retains it, must

obviously continue dishonestly to retain it. It would be different if the reception of the property were innocent, for then it would be for the prosecution to show at what stage guilty knowledge of the receiver supervened to make the retention dishonest." These comments are based upon the case of Saifal decided in appellate criminal jurisdiction by the High Court of Lahore in 1936: see I. L. R. 18 Lahore 227. The other remarks quoted from Ratanlal are based on older Indian cases the reports of which are not available here. It is always unsatisfactory. if not dangerous, to rely upon comments on Indian cases when the reports themselves are not available. We think, therefore, it is safer to construe the words of section 311 (1) in their natural and ordinary sense which would lead to the view that a person who keeps property knowing it to have been stolen retains it within the meaning of the section whether or not he had guilty knowledge at the time of receipt. If this is correct, receiving and retaining are not wholly mutually exclusive and a receiver can be guilty of retaining. This appears to have been the view accepted by this Court in $R$ , $\nu$ . Macharia Kichuhi 15 E. A. C. A. 53. Indeed, in that case this Court went so far as to substitute the word "retaining" for the word "receiving" in the material part of the Supreme<br>Court judgment; but it seems from the last paragraph of the report that it was a case where the appellant had been charged and convicted of theft. The Supreme Court had substituted a conviction of receiving and this Court thought that the Supreme Court should have substituted convictions of receiving or retaining.

But although we think, as we have said, that a receiver may be convicted of retaining, the converse does not hold true where the prosecution elect only to charge for receiving. In the instant case the only charge which the appellant had to meet was that at the time he received the stolen goods he knew, or had reason to believe, that they were stolen. The learned Judge in the High Court was of opinion that the evidence did not establish this beyond reasonable doubt and we think, therefore, that he should have quashed the convictions and allowed the appeal instead of substituting convictions based on a state of affairs, namely the acquisition of guilty knowledge subsequent to receipt, which the appellant had not been asked to meet and which, we were informed by Crown counsel, was not argued at the hearing of the first appeal.