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Osman v. R. Crim. App. 346-D-70; 30/7/70; El-kindy, Ag. J.



Osman v. R. Crim. App. 346-D-70; 30/7/70; El-kindy, Ag. J.

The appellant was charged with and convicted of conveying property suspected to have been stolen or unlawfully obtained c/s 312 of the Penal Code. The appellant had traveled by a lorry carrying some drums of paraffin. Inspector Mohamed on failing to get satisfactory explanation from the appellant as regards the drums suspected that the appellant might have obtained the oil unlawfully and therefore arrested him. The appellant had made conflicting statements to the police in the courts. The magistrate convicting the accused said”. “The accused is now claiming that property belonged to his brother. But right from the time of his arrest, he has given so many conflicting stories about these drums. He said they belonged to him and he could show the receipt and the person who sold them to him. Then he changed his story the same night and said he had no receipt and would not point but (7) to the seller. On the following morning, he also made conflicting statements after he was cautioned. One wonders which one could true at all. He is a young man just over 20 years and I see no reason for fearing the police. If he did not know whose kerosene that was, then he should have said so to the police. There is no evidence of any threats on him by the police.” On appeal to the High Court.

            Held: (1) “I may state that the burden of proof is on an accused person to give a reasonable explanation as to how he came by the property suspected to have been stolen or unlawfully obtained, and that this burden of proof is not heavy one and that the statement to be considered by the trial court is that which he makes in court ….. and not any statement which he might have made to any one else (including a police officer) as the duty to give an explanation does not arise until the accused is before the court ……. (2) “The learned magistrate had considered all the various statements the appellant had made at various times and places as if at all these places the appellant was under duty to give explanation. Gain the learned magistrate appears to have been unable to make up his mind as to which explanation he was going to consider as the appellant’s explanation as it can be seen from the words one wonders which one could be true. Again this passage contains a misdirection in that it suggests that the learned magistrate was looking for an account which ‘could be true’ when the appellant’s duty is only to be given an account which night be reasonably true and which is consistent with innocent possession. The learned magistrate, therefore, erred when he considered all these statements together. This is not to say that the learned magistrate should not have considered the various statements made by the appellant to the police. These would have been considered when testing the appellants account. As the learned magistrate misdirected himself in this manner, this court cannot say that the learned magistrate would have come to the conclusion he did. He considered the statement in the light of the decisions of this court, especially the decision of Kiondo Hamisi v. R. 1963 E.A. 211 p. and ALI RAMADHANI v. R. 1967/68 H.C.D. 430. (3) [The court then discussed the credibility of the witnesses]. “However, this court would not be justified in substituting its own views for that of the trial court since it did not have the benefit of listening to the witnesses speak although the appellant is entitled to have the appellant’s court’s own consideration and views of the evidence as a whole and its decision thereon (see DINDERRAI RAMKRISHAN PANDYA v. R. 1957 E.A. p. 336)”. (4) Appeal allowed conviction quashed.

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