Rex v Gachoka (Criminal Appeal No. 95.of 1946) [1946] EACA 58 (1 January 1946)

## $\mathbf{A}$

Before THACKER, J., and DE LESTANG, Ag. J.

## tha the communities of the action of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the REX, Respondent $\mathbf{v}^{\text{max}}_{\bullet}$

## KARANJA s/o GACHOKA, Appellant Criminal Appeal No. 95 of 1946

Criminal law—Theft—Plea of Guilty to knowingly receiving stolen property—Conviction for knowingly receiving—Section 315 Penal Code.

The appellant was one of six accused charged with theft of maize. He admitted receiving the maize knowing the same to be stolen. The learned Magistrate convicted him of an offence contra s. 315 P. C.

The appellant appealed.

Held (26-7-46).—(1) When an accused person on a charge of theft pleads guilty to knowingly receiving the stolen property it is competent for the Court to convict him of the latter offence.

(2) The failure of the Magistrate to specify which of the offences under S. 315 Penal Code he convicted the accused of, did not invalidate the conviction in the circumstances of this case, since on both the facts and the law the only offence under that section of which he could convict the accused, was that of knowingly receiving stolen' property.

Appeal dismissed.

$\mathcal{L}_{\mathcal{L}}$

Case referred to: Rex v. Diwani s/o Bugire, 20 K. L. R. Part II p. 123. $\mathcal{O}(\mathcal{O}(\log n))$

Lean for the Appellant.

Dennison, Crown Counsel, for the Crown.

ಸ್ಥಳಾಯಿತು ಕಾಲ್ಕಾರ್ಟ್<br>ಸ್ಥಳಾಯಿತು ಕಾಲ್ಕಾರ್ಟ್

JUDGMENT.—We have given this appeal a great deal of consideration because at one time we thought that there might be something in it, but for the reasons which we are about to give we have come to the conclusion that it has no merits.

The appellant was the second of six accused charged with the following $o$ ffence : —

Theft of 38 bags of maize by servants, contrary to section 275 of the Penal Code.

Particulars of Offence.—On the 3rd February, 1946, at Subukia, in the Rift Valley Province, you, being servants to Mr. S. Loew, jointly stole 36 bags of maize the property of your employer, the said property being of the value of Sh. 200.

In answer to the charge he said, "These three men (indicating accused 3, 5 and 6) brought 33 bags of maize to me".

The pleas of accused 3, 4, 5 and 6 were then taken and immediately afterwards the appellant made the following statement:—

"The 33 bags were in my possession from Monday until the following Sunday. I thought when I received the maize that it was stolen. I know that squatters are not allowed to sell maize except to their *bwana*. Accused 3, 5 and 6 told me the *niampara* had sent them with the maize and that it was from the *bwana's shamba.*"

It is clear, upon reflection, that this was and was considered to be part of this appellant's plea. Whereupon the learned Magistrate convicted the appellant together with four other accused in the following words:-

"I convict accuseds 2, 3, 4, 5 and 6 guilty on plea of an offence contra section 315 Penal Code."

The first point taken on behalf of the appellant is that his plea is not an unequivocal plea of guilty to a charge of knowingly receiving stolen property. We have examined carefully the plea of the appellant as set out above and are of opinion that it contains all the elements of that offence.

The second point appears to be that it is not competent to a court to convict of knowingly receiving an accused person charged of theft on his plea to that charge unless he is specifically charged with the offence of knowingly receiving as well.

It is sufficient for us in answer to this point to refer to Criminal Confirmation Case No. 350 of 1943 contained in Circular to Magistrates No. 59 of 1943 which deals with this very point in the following words:-

"Order.—The accused was charged with theft by a servant and in his plea, on which he was convicted, said, 'I did not steal these articles, but I received them knowing that they had been stolen'. On this plea he was convicted of receiving stolen property with guilty knowledge. This conviction was in our opinion quite correct for the admission of the offence of receiving by the accused was sufficient proof of the commission of the offence within the meaning of the term 'proved' in section 3 of the Indian Evidence Act. The sentence is confirmed."

The third point is that the finding of the learned Magistrate is bad for duplicity as he does not state of which of the offences contained in section 315, Penal Code, he convicted the appellant.

We do not think that there is any substance in this point. The only offence under section 315, Penal Code, for which a Magistrate may convict on a charge of theft is that of knowingly receiving stolen property (vide section 187, Criminal Procedure Code). Furthermore the plea of the appellant like those of his coaccused was clearly a plea of guilty to knowingly receiving stolen property and it is inconceivable that the Magistrate would or could have convicted him of anything else. Reading the record we think that it must reasonably be implied both from the law and the facts disclosed that the learned Magistrate purported to convict the appellant of knowingly receiving stolen property.

Were it necessary to do so we would not have any hesitation in implementing the learned Magistrate's finding to one of "guilty of receiving stolen property knowing or having reason to believe the same to have been stolen contrary to section 315 (1) Penal Code".

The appeal is dismissed.