Rex v Sethi (Criminal Appeal No. 94 of 1942) [1942] EACA 76 (1 January 1942)

### APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J., AND LUCIE-SMITH, J.

## REX, Respondent

#### $\mathbf{v}$

# GIRDHARILAL MEHTAMAL SETHI. Appellant

## Criminal Appeal No. 94 of 1942

Penal Code—Receiving stolen goods—Section 315 (1)—Identification in Court— Procedure suggested.

Held (16-10-42).—That the method of identification adopted was open to criticism. Alternative methods suggested.

Figgis, K. C., with Madan for Appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The appellant herein was convicted by the learned Resident Magistrate, Nairobi, of receiving stolen goods contra section 315 (1) Penal Code. The goods in question were 13 cases of brandy, viz., 7 cases of Gold Seal, 4 cases of Waveren and 2 cases of Apostle.

The Memorandum of Appeal filed by the appellant attempts to raise certain questions of law but in this Court Mr. Figgis for the appellant confined himself to facts and probabilities. The very careful and minute analysis of the evidence by learned counsel for the appellant has been of the greatest assistance to the Court.

The strongest point made by the appellant was that the witnesses Ismail Jivraj and Njuguna wa Githenji were only called to corroborate Ibrahim Premji as an afterthought and when it became apparent that Premji might be considered to be an accomplice in the offence. It appears to us that the learned Resident Magistrate must have been fully aware as to the time at which the above two witnesses were called as he himself signed the subpoenas which were issued to them after the adjournment of 3-6-42. Mr. Figgis has argued strongly that the evidence of Premji is too good to be true but the decision as to truth or untruth was one to be decided by the Magistrate who both saw and heard the manner in which the witness gave his evidence and there is nothing inherently incredible in what he said.

The learned Magistrate was admittedly somewhat impressed by the way in which Njuguna came to identify Jivraj in Court. The method of identification is, we think, open to some criticism as it might be argued that a native witness seeing a person made to stand up by himself would immediately jump to the conclusion that that is the person required to be identified. We think that a safer method of identification would be for the Court to call on all Indians in Court to stand up or merely to tell the witness to go round the Court and see if he can identify any one of them as a person he has seen previously and if he can he might be asked in what connexion he has seen him. However that may be we have the curious and to our minds very significant fact that this witness (Njuguna) who it is suggested had been carefully coached never once in his evidence mentioned Jivraj until the time when after examination-in-chief, cross-examination and re-examination the court asked him if he recognised the man who stood up in court. Surely if Jivraj and Njuguna had been brought in to bolster up Premji's story one of the first things he would have insisted on blurting out was the presence of Jivraj in the shop. He apparently however had no inkling as to the importance of bringing Jivraj into his evidence as he was given a golden opportunity of doing so in cross-examination. The same remarks would appear to

apply to the fact that Jivrai never mentioned the presence of Njuguna or attempted to identify him as one of the boys who handled the brandy.

It was striven to make capital of the fact that Jivrai was the only person who mentioned the using of a torch and yet said that he could read the various names on the cases. It must be remembered however that Jivrai insisted right through his evidence that the torch was used for reading the scales. We have not seen those scales but we have seen the cases and the names painted on them.

Another point made was the method of stacking the cases after they had. been weighed, four, three and two. This method of stacking seems to be a natural one, viz. four cases of Gold Seal (quarts), three cases of Gold Seal (pints and flasks) and two cases of Apostle. It may well be that Jivraj with nothing better to do made it his business to see why this method of stacking was employed and so paid more attention to the cases than he might otherwise have done. Had we any reasonable doubt as to the correctness of the learned Magistrate's decision that doubt would we think be completely resolved by what we may term the Waveren transaction. That transaction to our minds makes it clear that Premii was a perfectly honest business man anxious only to do business and make any profit that presented itself. We think it is going too far to ask us to believe that he or anyone else with the knowledge that the Waveren Brandy had been stolen would have been so brazen as to sell those four cases of it to the very people from whom they had been so recently stolen.

The learned Magistrate tried the case exhaustively and we cannot find that he has erred in any way in coming to the decision at which he finally arrived. As regards sentence we are of opinion that this is in no way excessive and we agree with him when he says, "It is obvious to me that a crime of this. magnitude (the original robbery) would never have been perpetrated but for the existence of persons like the accused who are willing to act as receivers of stolen. property".

The appeal is dismissed.