[1942] EACA 71

## APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

#### REX, Respondent

ν.

# RAJABALI S/O IBRAHIM, Appellant

# Criminal Appeal No. 64 of 1942

Receiving stolen property—Presumption from recent possession—Theft and receiving—Evidence justifying conviction for receiving.

The accused was found in possession of a motor car wheel, tyre and tube a few days after the articles had been stolen.

Held (16-7-42).—That it was not possible to say that the learned magistrate was wrong in concluding that the facts of the case supported a case of receiving and not theft.

. • Khanna for Appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The accused was charged with the theft of a motor car wheel, tyre and tube, the property of one, Mr. Jack. The learned Magistrate after hearing the evidence and a submission that there was no case for the accused to answer ruled that there was a case to answer for receiving with guilty knowledge. No evidence was called on behalf of the accused nor did he make any statement. Thereupon the learned Magistrate convicted the accused of the offence of receiving with guilty knowledge. The evidence in our opinion supports the findings that the complainant's property was found in the possession of the accused a few days after the articles were stolen and as to the question whether the conviction for receiving rather than theft in the circumstances was correct, we are of the opinion that the Magistrate's finding on the point was reasonable. It is often difficult in cases of recent possession of stolen property such as this to determine whether the proper finding is one of theft or receiving and whereas in the present case the surrounding circumstances do not necessarily point to the accused as the thief, it is competent for the court to enter a conviction for receiving. In $\text{Re} x$ v. Langmead, 9 Cox 464 at p. 468, Blackburn, J. says, "As a proposition of law, there is no presumption that recent possession points more to stealing than receiving. If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property, the presumption is that he received it." and in the same case Pollock, C. B. at pp. 467 and 468 says, "No doubt, upon the evidence, no other person than the prisoner appears distinctly to enter into the transaction, and all that appears is that the prisoner was found very recently in possession of the stolen sheep. That prima facie is evidence of stealing rather than of receiving; but in no case can it be said to be exclusively such unless the party is found so recently in possession of stolen property and under such circumstances as to exclude the probability of receiving—as where a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received

it from some one else, then it may be evidence either of stealing or of feloniously receiving." In *Reg. v. McMahon*, 13 Cox 275 at pp. 280 and 281, Palles, C. B. 4, says, "To make a complete case of receiving as distinguished from larceny one" matter is material and one alone, that is, evidence that some person different from the prisoner was the thief. There is a strong case on the evidence that the prisoner, was the thief: was there evidence to go to the jury that the thief was some other person? There was a possibility that it was committed by some other person."

In conclusion it is not possible for this Court to say that the learned<br>Magistrate was wrong in concluding that the facts of the case supported a case of receiving and not theft. The appeal is dismissed. The accused will surrender to his bail.