Rex v Mungai (Criminal Appeal No. 455 of 1948) [1948] EACA 76 (1 January 1948)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J.

## REX, Respondent (Original Prosecutor)

## MUNGAI s/o THANU, Appellant (Original Accused) Criminal Appeal No. 455 of 1948

Criminal Law—Receiving stolen property—Penal Code, section 315 (1)—Raincoat found in possession of appellant more than two years after theft-Name of owner still inside collar of coat-Coat valued at Sh. 400-Defence that appellant purchased coat recently from second-hand dealer for Sh. 40.

The facts appear sufficiently from the judgment below.

Held (27-9-48).—(1) That in the circumstances of the case the fact that the appellant paid<br>only Sh. 40 for the coat could not be sufficient by itself to warrant an inference of<br>guilty knowledge. R. v. Holmes & Gregory 11 C

(2) That the prosecution had not established its case against the appellant beyond any reasonable doubt, and whilst the appellant's explanation might not convince everyone of its truth, it was at least one which quite reasonably might be true.

Appeal allowed. Conviction quashed and sentence set aside.

Kapila for the Appellant.

Modi for the Crown.

JUDGMENT.—In this case the appellant appeals against his convictions for having received stolen property contra to section 315 (1) of the Penal Code. The article which is the subject of the charge was a European-style raincoat and it was proved to have been stolen from a gentleman named Blin-Stoyle in April, 1946. More than two years later a police officer when carrying out a traffic check noticed a raincoat on a driving seat of a bus which was being driven by the appellant. On seeing the name Blin-Stoyle inside the collar of the coat he became suspicious and asked the appellant where he had got it from. Whereupon the appellant said he had bought it from a second-hand clothes dealer at Kariakor. The appellant has in substance stood by his statement both in a subsequent statement to the police and in his evidence before the Magistrate when he said also that he had paid Sh. 40 for the coat, while the owner in his evidence valued it at Sh. 400. From the judgment it would seem the Magistrate in the main accepted the appellant's story but that nevertheless came to the conclusion that the inference of guilty knowledge was irresistible on the grounds $(a)$ that the appellant had paid a price for the coat very much below its true value and (b) that the fact that the owner's name was so prominently displayed inside the coat must have put the appellant on his inquiry had he been an honest buyer.

Mr. Kapila has cited the case of Holmes and Gregeory, 11 Criminal Appeal Reports 130, as authority for the proposition that the fact that stolen goods are bought at an undervalue is not conclusive proof of guilty knowledge. It is, of course, however, a factor which with other facts must be left to the judge or jury. In the circumstances of this case I do not think that the fact that this appellant paid only Sh. 40 for the coat could be sufficient by itself to warrant an inference of guilty knowledge. Forty shillings to a person in appellant's position is a fair sum of money and he stated in evidence that he had never bought a raincoat before and knew nothing of their value. This may well be so. Furthermore the purchase was made in market overt from a second-hand clothes dealer which is the sort of place a buyer may genuinely expect to get something in the nature of a bargain. The learned Magistrate doubtless put all these facts

together before coming to the conclusion that he did but when the other factors in the case are exercised to what do they amount? A genuine buyer of a secondhand garment would not I thing naturally jump to the conclusion that a garment had been stolen merely because the name of the late owner was still on the garment, but I should expect a person who bought such a garment with the knowledge that it had been stolen to remove the name at the first opportunity. This the appellant did not do and the fact that he did not do so is, in my opinion more in his favour than the inference in his disfavour that the learned Magistrate has sought to draw.

On balance therefore this Court is of opinion that it would be unsafe to allow this conviction to stand as the prosecution has not established its case against the appellant beyond any reasonable doubt. The possession of the garment by the appellant was the very reverse of recent; it was the kind of garment which might have legitimately found its way into the second-hand clothes market during the course of two years and the appellant gave an explanation which if it might not convince everyone of its truth was at least one which quite reasonably might be true. In these circumstances the appellant must succeed in his appeal. His conviction is quashed and I order him to be set at liberty forthwith.