Rex v Bakari (Criminal Appeal No. 235 of 1948) [1949] EACA 20 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

ν

## BAKARI s/o ABDULLA, Appellant (Original Accused) Criminal Appeal No. 235 of 1948

## (Appeal from decision of H. M. High Court of Tanganyika)

Criminal law—Tanganyika Penal Code—Appellant convicted of arson (sect. 319 (a)), Entering a dwelling-house with intent to commit a felony (sect. 295), and theft (sect. 265)—Appellant found in recent possession of the stolen property—Presumption that appellant had entered and committed the theft— Whether trial Judge justified in extending the presumption to cover charge of arson as well.

The facts appear sufficiently from the judgment below.

Held (14-1-49).—That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal.

Appeal dismissed.

Appellant absent, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant in this case was convicted in the High Court of Tanganyika of arson, and of entering a dwelling-house with intent to commit a felony therein, and of stealing.

The evidence of the complainant, which the learned trial Judge accepted, established that when he went to work on the morning of the 26th August, 1948, he left behind in his house amongst other property four blankets and a bedsheet. About an hour later whilst on his way to work he was overtaken by a messenger who told him that his house was on fire and on returning he found his house completely destroyed and all his property either burnt or missing. Four days later the appellant tried to sell a blanket which was subsequently identified by the complainant as one of the blankets which he had left in his house on the day of the fire. On a search of the appellant's house a bedsheet and three other blankets were found, and these in turn were identified by the complainant. The learned trial Judge being satisfied with the evidence of identification, and in view of the contradictory explanation put forward by the appellant as to how he came to be in possession of these articles, was clearly justified in drawing the presumption that on the day of the fire the appellant must have entered complainant's house and taken these articles away.

The only question which could give any difficulty in this case is whether the learned trial Judge was justified in extending the presumption to cover the charge of arson as well, for on this charge there was no evidence whatever against the appellant other than his possession of the stolen property. Cases do often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal. The Court must in every case consider all the circumstances of the particular case before it. That is what the learned trial Judge in this case

has clearly done, and it is not possible for us to say that the conclusion reached by him and the assessors was unreasonable. It was proved that there was no fire left in the house when the complainant left it, and that the house must have been fired by some hand not very long afterwards. It was during this short period that the appellant must have carried out the theft and the inference, under these circumstances, that he himself set fire to the house in order to cover up the loss. of the property which he had stolen is certainly a reasonable one.

The appellant has also appealed against his sentence of seven years' imprisonment with hard labour, but the learned trial Judge has set out his reasons for imposing a severe sentence and we are not prepared to interfere with his discretion. The appellant's offence was a most serious one and we do not regard the sentence imposed as in any way excessive.

The appeal is dismissed.