[1940] EACA 41

### CRIMINAL CONFIRMATION

#### BEFORE THACKER, J., AND BARTLEY, J.

# REX, Prosecutor $\mathbf{v}$ .

### KIPLANGAT ARAP BOET, Accused

## Confirmation Case No. 835 of 1940

Criminal Law-Section 295 (1) Penal Code-Charge of possession of stolen property *contra* section 295. (1) Penal Code—Evidence established theft and not receiving—Conviction.

Accused was charged with being in possession of stolen property contra section 295 (1) of the Penal Code and was convicted of that offence. The evidence however showed that the accused was the thief and not a receiver.

Held $(7-11-40)$ .—(1) That the conviction could not be altered to one for theft.

(2) That a person cannot be convicted of receiving or retaining if the evidence proves that he was the thief.

Accused absent unrepresented.

Brown, Solicitor General, for the Crown.

JUDGMENT.—The accused in this case, a boy of fourteen years, was charged with receiving or retaining a bicycle pump knowing or having reason to believe the same to have been stolen contrary to section 295 (1) of the Penal Code.

The magistrate quite rightly found that the evidence proved that the accused stole the bicycle pump himself but he convicted the accused of the offence. with which he was charged. Two questions arise out of this conviction:

1. Can the conviction be altered to one for theft?

2. Can a person be convicted of receiving or retaining when the evidence proves theft?

We have had the advantage of hearing the learned Solicitor General on these points and he submitted that the answer to both questions is in the negative. There is no doubt that under sections 236 and 237 of the Indian Code of Criminal Procedure a person charged with receiving could be convicted of theft although as was pointed out in 1888 A W N 116 as quoted in Sohoni at page 591 the proper course would be to alter the charge.

The Code of Criminal Procedure in force in this Colony does not however reproduce sections 236 and 237 of the Indian Code. Section 174 of the Criminal Procedure Code reads: —

"When a person is charged with an offence, and part of the charge is not proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it."

That section is an expression of the English Common Law and we therefore follow English decisions in this matter. It is clear from Reg. v. Coggins 12 Cox 517 that a person charged with receiving cannot be convicted on that charge on evidence which proves that he was a principal in the theft.

In our view theft is not "part" of the charge within the meaning of section 174 of the Criminal Procedure Code in a charge of receiving. The meaning of the phrase "part of the charge" in that section was set out in these words by Thomas, J., in Confirmation Case 168/33:

"So if a man is charged with wounding with intent to murder and the intent to murder is not proved, he might be convicted of unlawful wounding provided that part has been proved. Or, if a man is charged with assault occasioning actual bodily harm and the part of the charge as to the occasioning actual bodily harm is not proved he might be convicted of an assault provided that part of the charge has been proved. If the charge is burglary and it is not possible to prove the time of entry, then if a house-breaking has been proved the accused could be convicted of housebreaking. But on a charge of burglary an accused person could not be convicted of an entirely different offence such as abduction or forgery, since such offences are in no way part of the offence or charge of burglary."

For the reasons given we agree with the learned Solicitor General that the answer to both questions is in the negative.

The conviction and sentence are set aside and the accused is ordered to be discharged.